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With the UK's vaccine roll-out in full flow and larger numbers of people receiving their Covid-19 vaccines, the question being increasingly asked is – can we mandate that our workforce be vaccinated?
At present, the UK government has not made it a legal obligation that people are vaccinated, and it does not appear that it has any plans to change its position. Politicians have voiced their belief that companies can mandate vaccinations for employees, but this remains a view only and not law.
Employers have an ongoing duty to ensure their employees' health and safety in the workplace, and employees have an obligation to co-operate with their employer. Employers will need to begin to factor vaccinations into Covid-19 risk assessments as well as other Health and Safety or Covid-19 polices. Employers may decide that vaccinations are required to achieve a Covid-secure workplace.
That said, there are a number of legal and ethical issues surrounding vaccination.
Employers will not be able to rely upon a statutory requirement to compel employees to receive the vaccination.
Employers may consider extending a reasonable and lawful instruction that their employees receive the vaccination. However, whether or not that instruction would be deemed reasonable and lawful is industry and workplace dependent. Companies that operate in the care industry, needing to ensure vulnerable people's health and safety, would be in a stronger position to argue that it is a reasonable and lawful instruction. Employers who operate in professional services, for example, and have maintained a stable and productive home-based workforce may be less able to demonstrate that it is a reasonable instruction to require vaccination to facilitate a return to the workplace.
Employers should assess the workplace, working arrangements, and the potential need for vaccinations before implementing a vaccination policy or instruction. This will reduce the risk of a disgruntled workforce or, worse, litigation. Litigation for those employees with more than two years' service could come in the form of unfair dismissal claims if employees are unreasonably dismissed for failing to follow an instruction, constructive dismissal claims if employees resign in consequence of the company's unreasonable instruction or discrimination claims which can arise from as early as recruitment.
If a company makes a lawful and reasonable instruction that an employee be vaccinated, and the employee refuses without good reason, if the employer dismisses, this may amount to a fair dismissal following an employee's misconduct.
Of course, in reaching that decision, an employer must demonstrate that they have carried out a fair and proper procedure before dismissing the employee and should be able to show that the instruction was reasonable and the employee's refusal was not. With that in mind, it would be sensible to include an additional level of consultation to (a) properly understand the employee's reason for refusing to be vaccinated and (b) reassure them of their concerns and provide them with the opportunity to reconsider before making the final decision to dismiss.
In exceptional circumstances, where a company makes a reasonable and lawful instruction and an employee reasonably objects, a company may still be able to dismiss the employee. These types of dismissal are typically referred to a Some Other Substantial Reason (SOSR) dismissals. Companies should exercise caution, relying immediately upon SOSR dismissals as there is a high risk of unfair dismissal and discrimination claims.
Implementing a policy or practice that all employees are required to be vaccinated to continue or return to work, on the face of it, may seem fair on the basis that all employees are receiving equal treatment. That theory would support a defence against a claim of direct discrimination, but not indirect discrimination.
Indirect discrimination occurs when a workplace practice is applied to everybody equally but disproportionately disadvantages employees of a certain characteristic. For example, at present, the vaccines are only available to people of a certain age group, so a 30-year-old employee would be unable to comply with the workplace practice to be vaccinated. Similarly, a disabled employee who has been medically advised not to be vaccinated would be disadvantaged by a workplace practice requiring all employees to be vaccinated. In a third example, an employee whose religious or philosophical belief does not allow them to be vaccinated would, again, be disadvantaged by the practice.
In practice, companies should be aware that their refusal to recruit unvaccinated candidates, to allow unvaccinated employees to return to work or dismiss employees would invite discrimination claims that include awards not only for loss of employment income but also for injury to feelings.
As some employees are likely to question whether they should get the vaccination and whether it is safe, it would be good practice for companies to introduce or update their Covid-19 policies. These policies could:
Currently, given such a small percentage of the workforce is eligible for the vaccination, it would be premature at this stage for most employers to insist their employees be vaccinated. Going forward, whilst it may be reasonable to instruct current employees to be vaccinated, this should always be weighed against legitimate reasons for objection and any potential issues of discrimination. Employers' ability to mandate vaccinations will most likely be industry or workplace-specific and, as such, success is much more likely if the reasons for the request to be vaccinated are clear, substantiated and explained. Employees are much more likely to get on board if they understand the company's needs, and as such, communication is key.