Pimlico Plumbers Ltd previously captured the attention of employment lawyers and the general public alike, in a case concerning the employment status of its plumbers (Pimlico Plumbers Ltd v Smith [2018] UKSC 29) which made it all the way to the Supreme Court. The company has now once again returned to the public eye in respect of its decision to amend contracts of employment to require all new employees to be vaccinated against Covid-19, and other employers are planning to follow suit. Can employer force employee to be vaccinated?
The Figures
A survey of 750 executives carried out by HRLocker has revealed that 23% of employers are planning to mandate vaccination against Covid-19, and 51% will be encouraging it. Furthermore, 40% of employers have stated that they will be willing to dismiss an employee who refuses to be vaccinated without reasonable excuse, and almost half said that they would hire a candidate who has been vaccinated over one who has not.
A vaccine tracker created by HRLocker has already been downloaded by more than 200 companies to assist them with tracking who has been vaccinated, who is exempt and who remains to be vaccinated.
The Concerns
Already, there are cases in the press highlighting employers which have failed to implement sufficient PPE, social distancing measures and/or testing, and so some employers are concerned that, if they do not mandate the vaccination, they could be at risk of claims for failing to fulfil their duty of care to employees in the workplace. However, conversely, if they do mandate vaccination against Covid-19, there is the possibility of claims from employees for discrimination and unfair dismissal.
The Law
Currently, the Government has no legal basis on which to force individuals to be vaccinated. It is instead setting out to persuade individuals that the vaccines are safe and it is in the population’s best interest for as many people as possible to get vaccinated.
The Health and Safety at Work Act 1974 provides that employers must take all reasonably practicable steps to reduce workplace risks to their lowest possible level. Whilst this does not necessarily include providing “in-house” vaccinations, it can include encouraging staff to take the vaccine when they are offered it, in order to reduce the risk of spreading the virus across the workforce. Likewise, employees have a duty under the Act to “to take reasonable care for the health and safety” of themselves, although the impact of this clause in relation to Covid-19 vaccination has not been explored in the courts.
Under general discrimination law, employers are only permitted to ask applicants about their health if there are necessary requirements of the job that cannot be met with reasonable adjustments. It stands to reason, therefore, that any employer seeking to hire only those who have had the vaccine would have to prove that those without the vaccine would be unemployable in the post, and that there are no reasonable adjustments that could be made to allow them to carry out the role. Without this, they would not be permitted to ask applicants whether they have had the vaccine, and would therefore be in a legally precarious position if they did so.
Should Employers Mandate the Vaccine?
Many are in dispute as to whether or not employers should be able to require employees to have the vaccine. Some might suggest that this is an overreach on the part of the employer, and that it is a medical decision to be made between an individual and their healthcare providers. However, it may be worth considering the wider repercussions of an individual employee refusing the vaccine. Does that choice have repercussions for colleagues, clients, and business operations, too? Quite possibly, not to mention other members of the general public.
Whilst being vaccinated may not necessarily prevent you from spreading the virus, the Government has said, when discussing the vaccinations of healthcare workers, that they “expect that vaccinated health and care staff will be less likely to pass infection to their friends and family and to the vulnerable people they care for“. Similarly the World Health Organisation has said “when we get vaccinated, we aren’t just protecting ourselves, but also those around us“.
At the moment, not everyone will be able to get the vaccine, whether or not they want it. While the vaccine is still being rolled out and, indeed, is still in its relatively early stages, it would therefore likely not be reasonable to require employees to be vaccinated.
Reasonable Refusals
Some employers are saying that they will require all employees to be vaccinated, unless they have a reasonable reason for refusing. The Government has already highlighted that there are some individuals whose pre-existing health conditions will mean that they will not be suitable to take the vaccine, for example, due to severe allergies.
The NHS has also explained that most pregnant women will not be offered the vaccine unless they are at a higher risk of getting the virus due to their line of work, or if they have certain pre-existing health conditions.
Certain individuals who refuse to have the vaccine could be protected under the Equality Act 2010 on the basis of their religion or philosophical belief. Some religious groups believe that vaccines “interfere with divine providence” and so may not wish to take it. Veganism is now a protected characteristic and some vegans may not wish to take the vaccine as animal products have been used in their development. However, the Vegan Society has encouraged vegans to take the vaccine in order to look after their health and that of others.
Dismissal for Refusal to be Vaccinated
Given the novelty of this situation, no cases have yet been decided in the Employment Tribunal in relation to vaccines and employer policy, whether for either unfair dismissal or failure to protect staff. It is therefore difficult to predict whether any claims for unfair dismissal as a result of refusing to have the vaccine would be successful.
However, decisions to dismiss on this basis should be treated with caution. There may be alternatives available, such as requiring permanent homeworking or a temporary change of role to reduce contact with vulnerable individuals. As with discrimination claims, the Tribunal may wish to see that reasonable adjustments have been made to try to prevent an individual’s dismissal.
Note for Employers
As with many matters relating to the Covid pandemic, this topic presents a new challenge which is likely to require further consideration and navigation in the near future. At this relatively preliminary stage, it is important to consider the true needs of the business and whether a requirement to have all staff vaccinated is a necessary part of the businesses functions. If you are considering adding this requirement to your employment process, we advise you seek legal advice.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such.
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