03 March 2021
With the UK’s coronavirus vaccination programme well under way - at the time of writing over 20 million people have received at least their first dose – attention is increasingly turning to the possibility of “vaccine passports” to allow foreign travel, to permit attendance at sports or music events, or even to allow entry to pubs, restaurants or gyms. However, concerns have been expressed around discrimination and around a refusal to be vaccinated (perhaps for good reason), preventing an individual from taking part in society.
Similarly, in the employment law context, there has been much discussion of so-called “no jab, no job” provisions. In this blog, we look at some of the key employment law issues.
Can I force my employees to have the vaccination?
Taking that question literally, then no, you cannot force anyone to have a vaccination. But, what employers really mean by asking this question is whether they can dismiss someone who refuses.
Can I sack an employee who won’t be vaccinated?
This is the key question, and no doubt it will be a heavily litigated issue over the next year or so. As with so many issues that arise in the employment relationship, the answer will differ depending on whether the employee has reached the critical milestone of 2 years’ service and acquired the right not to be unfairly dismissed.
Employees with over 2 years’ service
These employees have the required service to claim unfair dismissal and in such a claim the employer needs to show a “potentially fair” reason for dismissal, and it must have been reasonable to dismiss for that reason.
The “potentially fair” reason relied on here is likely to be conduct – that the employee refused to comply with a lawful and reasonable instruction (to be vaccinated) – or “some other substantial reason” (that continuing to employ the employee poses an unreasonable risk to the health of others).
Whether an instruction to get a vaccination is lawful and reasonable is perhaps not an easy question. We would not traditionally have thought that an employer has the right to instruct the employee in relation to medical matters. Nevertheless, clearly here the employer will point to the increased risk that the unvaccinated employee a) will contract the virus and b) pass it on to colleagues or service users.
An employment tribunal would need to consider whether, in all the circumstances, it was reasonable to dismiss – taking account of the nature of the role, the specific risks posed, ability to redeploy to other work or amend duties, the reasons for not wishing to be vaccinated, how the employer has communicated with the employee etc. An employer will need to take all of these factors into account and approach matters very carefully - a blanket approach of dismissing all who refuse to be vaccinated is unlikely to be successful.
When might dismissal be justified?
It is thought that in particular roles, (for example where the employee requires to deal with service users who have vulnerabilities), an employer may as a last resort be able to justify dismissal, but there are a number of risks. Certainly, the employer would need to consider the risk of discrimination claims, where those employees with particular religious or philosophical beliefs, or health vulnerabilities, or who are pregnant, may not wish to take the vaccine. Could it even be argued that “anti-vaxx” beliefs are protected philosophical beliefs? Where the refusal to be vaccinated relates to a “protected characteristic” the employer may need to justify dismissal or other detrimental treatment as being a proportionate means of achieving a legitimate aim. Dismissal would need to be a last resort.
Employees with less than 2 years’ service
Here, employers are in a stronger position. There is no right to claim unfair dismissal, but the discrimination risks mentioned above still apply, and employers would have to tread very carefully.
Can I refuse to hire someone who refuses to be vaccinated?
Again, there is no unfair dismissal risk, but discrimination claims could be brought if the reason for not wanting to be vaccinated engages a protected characteristic.
Employers are not in any case allowed to ask health questions (with some exceptions), until they have decided to whom they will offer the job.
Is this a data protection issue?
There are undoubtedly significant data protection issues in insisting that employees disclose sensitive personal data (about health issues). Can you justify obtaining that data? What processing are you going to carry out on the data? For what purposes will you use it? How will you keep it secure?
A data protection impact assessment will be required, and expert advice should be taken to get this right.
How should I approach these matters?
ACAS has issued helpful guidance for employers. ACAS does not recommend making vaccination mandatory, but urges employers to support employees and encourage them to get the vaccine.
ACAS advises sharing relevant and accurate information with staff about the vaccination programme and maintaining an open dialogue to ensure good staff relations.
ACAS advise that if an employer feels that vaccination is a necessary requirement for someone to do their job, then they should work with staff members, or the workplace’s recognised trade union, to address this.
Employee concerns about vaccination should be heard and kept confidential and employers must recognise there may be perfectly legitimate reasons for not taking the vaccine.
Do the same issues apply to mask wearing?
Similar issues do arise, but wearing a mask is by its nature less invasive, and refusal to wear a mask is less likely to trigger protection under discrimination legislation. However, it may do so, and it is well known that some people are medically exempt from wearing a mask.
The tribunals and courts have certainly had to deal with cases about mask wearing and will continue to do so. In a recent employment tribunal case, an employee was required to wear a face mask on a client site, but refused to do so. The client banned the employee from site. He was dismissed summarily for misconduct on the grounds that his refusal to wear a mask, despite instruction, jeopardised his employer’s good relations with its client and threatened health and safety. The tribunal decided it was a fair dismissal. While these cases are all very fact-sensitive, and no great weight should be placed on this decision, it is an interesting example of the tribunal having to adapt to new issues and new arguments.
No doubt the tribunal will continue to adapt when dealing with the inevitable cases concerning a refusal to be vaccinated.
This update contains general information only and does not constitute legal or other professional advice.
If you have any questions, please do not hesitate to contact a member of BTO's Employment Law team:
Caroline Carr, Partner: E: cac@bto.co.uk / T: 0141 225 5263
Laura Salmond, Partner: E: lis@bto.co.uk / T: 0141 225 5313
Douglas Strang, Senior Associate: E: dst@bto.co.uk / T: 0141 225 5271