Is a “no jab, no job” policy really enforceable?

We all understand that an employer cannot compel an employee to be vaccinated.  Any physical attempt to do so is likely to constitute a civil wrong (the tort of trespass to the person), and also the criminal offence of battery or assault.

But we all also understand that an employer can use other forms of compulsion, such as the threat of disciplinary action or even dismissal, to pressure an employee to take up the offer of a vaccine.  The question , therefore, is what are the legal limits of an employer’s ability to require an employee to take up the vaccine.

The ACAS guidance on getting the coronavirus vaccine for work states that, in most circumstances, it is best to support staff to get the vaccine, without making it a requirement.  We would suggest that this is the approach that an employment tribunal would expect a reasonable employer to take in the vast majority of cases.

It may also be useful to consider some concerns that employees may have – such as having to take time off to attend a vaccine appointment or feeling unwell after having the vaccine – and attempt to address and alleviate those concerns.  Would you consider paid time off to allow employees to have the vaccine during working hours or paying full pay rather than SSP if an employee has to take time off as result of vaccine side-effects?

Potential Claims

An employer who introduces a ‘no jab, no job’ policy but cannot show that it is necessary is likely to be at risk of claims, e.g.:

• for indirect discrimination:

1. from younger employees who cannot get a vaccine because they do not fall within a priority group for vaccination;
2. from those who refuse the vaccine because of a religious or philosophical belief (which could in theory include those who are ideologically opposed to vaccines in general, so-called ‘anti-vaxxers’, if it means the definition applied by employment law regarding what constitutes a philosophical belief); or
3. From those who cannot have the vaccine because of a disability or some other medical reason i.e. pregnancy.

• for constructive unfair dismissal, on the basis that the requirement breaches the implied term of trust and confidence

Moreover, in some workplaces, other measures (which are expected to remain in the short to medium term – such as handwashing, social distancing and masks) may be sufficient to provide a Covid secure working environment, making mandatory vaccination harder to justify.

Disciplinary Action

Can refusing the vaccine be a conduct issue?

It is likely that it will only be possible for the employer to treat an employee’s refusal of the vaccine as a conduct issue if:

• the requirement to be vaccinated is contractual right, or a reasonable management instruction;

• vaccination is necessary, and

• the employee’s refusal is unreasonable.

This means that there will be some employers who can require an employee or worker to have the vaccine as an occupational health requirement – each situation will have to be considered on its own facts – but it is likely that asking staff to take the vaccine (when it is offered to them) is more likely to be regarded as a lawful and reasonable instruction where:

• as part of their duties, an employee needs to travel to countries for which vaccination is necessary and these duties cannot be carried out from home;

• the employee in question works with the clinically extremely vulnerable;

• vaccination is more likely to protect work colleagues or others such as patients, customers or visitors (more likely to be the case in a setting such as health or social care where other work colleagues are also being offered vaccination); and/or

• the workplace cannot be made ‘Covid secure’.

Conversely, asking staff to be vaccinated in a low-risk setting, or one in which staff have been able to work from home effectively, is unlikely to be regarded as a lawful and reasonable instruction.

Dismissal

In order to demonstrate that dismissal is fair and within the range of reasonable responses open to an employer, it would first need to show that, by refusing to be vaccinated, the employee had refused a reasonable management instruction.  That act of misconduct would not necessarily be sufficiently grave to justify dismissal.  As with any disciplinary sanction, the employer will need to ensure that it had acted reasonably, which may depend on a number of factors, including:

• the employee’s reasons for refusing the vaccine and, in particular, whether those reasons are related to protected characteristics under Equality Act 2010;

• the type of work the employee does;

• whether the employee’s duties require them to be in the workplace, or whether they can work from home;

• whether the employee’s refusal to have the vaccine poses a risk:

1. to the employee personally; and/or
2. to colleagues, and (depending on the nature of the workplace) to patients, customers, clients or other visitors to the workplace.

• alternatives to dismissal, such as a change of duties or homeworking (either on a permanent basis, or until the coronavirus risk has abated); and/or

• mitigating factors, e.g. the reasons for the employee’s refusal.

In a nutshell, an employer’s primary focus should be on educating and persuading employees to obtain the vaccine before any more draconian action is considered and, even then, it may not be possible to force the issue.  Ultimately, an employer must undertake an objective risk assessment, taking into account an employee’s role and the nature of the workplace, before taking action.

Finally, remember to be sensitive, keep any discussions confidential and record any relevant data that has been collected in accordance with GDPR requirements. In case you missed, you can find our recent two-part blog series on the interaction between COVID-19 and GDPR by clicking here and here.

If you have any questions or concerns about the best approach to take when it comes to the COVID-19 vaccine and your workforce, please get in touch with the MLP Law Employment team at employment@mlplaw.co.uk or 0161 926 9969. Please also keep an eye out on our Twitter feed @HRHeroUK and for our regular blogs on all things Employment Law and HR.