As the Government accept that the new Coronavirus variant has changed the UK’s situation “very substantially” (Professor Chris Whitty; Chief Medical Officer), the vaccination program is being accelerated to try and fast track as many people to receive the first of the two stage doses as a matter of urgency. With the death toll surpassing the 100,000 mark, the highest in Europe, employers and employees are anxious in equal measure about being in working environments during the pandemic.
More than 6.3 million people (at the time of writing) in the UK have received the first dose, with the Government’s vaccination program prioritising those who are most vulnerable first. It is noteworthy to mention however that although the plan is to vaccinate everyone over the age of 18, getting a vaccine is not compulsory by way of law because experts say this would not help to create public confidence. So where does this leave employers and employees when is comes to managing a Covid secure workplace? Logic would dictate that a vaccinated workforce is a safe workforce? But in reality how easy is this?
Currently, individuals contacted to book an appointment for the vaccination are being given the option to decline. The Government continues to try and persuade the population that the three approved vaccinations, Pfizer, Moderna and AstraZeneca are safe and that there is a significant benefit to receiving the same to include the following:
- a reduction in the chance of contracting Coronavirus, or becoming seriously unwell
- reduction in the likelihood of infecting others and passing on the virus.
No jab no job
Earlier this month, Pimlico Plumbers boss was quoted saying that he would not be willing to offer any jobs to individuals who had not been vaccinated, with his mantra ‘no vaccine jab no job’ going viral on social media. But is this lawful? How does this ‘policy’ affect existing employees who may refuse the vaccination for various reasons? He is said to have re issued contracts of employment with a mandatory Covid vaccination clause which employees would have had to agree to as a change to their terms and conditions in order for the same to be effective. The boss has also reported to have said that he is willing to spend what it takes to have his workforce privately vaccinated; although this is not possible yet.
This publicised situation is one that has struck a chord with many employers as they strive each day to navigate running their business in the most Covid secure way possible. Numerous questions are being asked by employers and employees with regards to their rights and obligations when it comes to the highly anticipated vaccination.
Can an employer force employees to be vaccinated?
As already stated above, it is not a legal requirement to be vaccinated. Employers cannot force their staff to be vaccinated. If the Government has no right to force an individual what right can an employer have?
Covid Safe Workplace
Employers are required to ensure that they take all necessary and reasonable steps to reduce risks in the workplace, with the Health and Safety Executive providing extensive Covid secure guidance and recommendations for each industry sectors.
Employers can encourage staff to take the vaccination when it is offered as part of trying to ensure that the workplace is as safe as possible, especially if the workplace environment is deemed high risk. It is possible to argue that refusal of the vaccination amounts to ‘unreasonable refusal of management instruction’, a result of which disciplinary action could be taken in the usual way, however in my view the reason for the refusal and the specific workplace circumstances would need full consideration before disciplinary action (and dismissal in certain circumstances) could be deemed a reasonable recourse by an employer.
Employers can, like the Pimlico Plumbers boss vary contractual terms to incorporate a term that requires the employee to have had the vaccination, but of course any change to the terms would have to be with the employees agreement. It is unlikely that any variation to a Contract requiring an employee be vaccinated would be deemed reasonable, however this depends on the nature of the work, the working environment and the individual’s circumstances.
A unilateral variation to the contractual terms could give rise to a claim for constructive dismissal by employees.
Reasonable –v- Unreasonable Refusal
There are a small number of people who may be at risk of Covid 19 as they fall into one of the vulnerable categories but cannot have the vaccination for medical reasons, for example due to possible side effects or likely severe allergic reactions. An employee who falls into this category is likely to be able to reasonably refuse any employer recommendation to have the vaccination.
Pregnant women are also unlikely to be offered the vaccination, unless pre-existing health conditions mean that they have a higher risk of getting Coronavirus and becoming seriously ill from it, or due to their individual working environment placing them at greater risk (for example NHS Staff), therefore an employer would not be advised to take disciplinary action against an employee who is pregnant and refuses the employer’s recommendation to be vaccinated, even if this would make the workplace safer.
There is widespread hesitancy amongst certain groups, for example black and ethnic minority groups who have been reported to have revolted against calls to be vaccinated due to concerns over the safety and efficacy of the vaccine. In addition, a consideration that may not have been had is refusal by employees on grounds of religious or philosophical beliefs under the Equality Act 2010, for example groups that do not believe in the use of vaccinations or for example because animal products have been used in their development / ingredients. Disciplining an employee who refuses on such grounds could amount to unlawful discrimination.
Navigating the workplace in real life
Disciplining, and certainly dismissing an employee due to their refusal to have the Covid19 vaccination is likely to be viewed (by an Employment Tribunal) as a disproportionate measure, and employers should consider alternatives to avoid dismissal. So what can employers do if they feel an employee who has refused the vaccination is unsafe to come into work? Employers can consider options such as:
- working from home
- Re arrangement of office space / areas to ensure that person is working a safe distance from colleagues
- Arranging for a healthcare professional to come in and discuss the benefits of the vaccine
Fair and reasonable
It is always advisable to follow a fair reasonable process, and it may well be the case that further or persistent unreasonable refusal of a request at a later stage perhaps when there is more information available about the vaccination, and its effects on people may mean that disciplinary action and even dismissal in some circumstances is reasonable. A new survey conducted by HRLocker, shows the heightened importance of vaccinations to employers – with 40% stating that they would be willing to dismiss an employee who refused to be vaccinated, however employers are advised to err on the side of caution before taking such measures.
Record and Review
It is advisable to have policies and procedures in place regarding the Covid vaccination, this will set out the basis on which employers recommend that the vaccination is taken and will also enable employers keep up to date records of the people who have been vaccinated and those who have refused to continue to ensure that the work environment is Covid safe and to review the situation regularly in light of changes.
Employers should always attempt to explain the rationale for refusal, an employer’s continued threat of potential disciplinary action could give rise to an employee making a formal complaint and seeking recourse via the grievance procedure.
For further advice on workplace issues relating to Covid19 contact Kaajal Nathwani on 020 8363 4444.