With more and more organisations now BTO (Back to the Office), employers are considering their stance in relation to this issue.
To date the government have only legislated for COVID-19 vaccinations to be mandatory for workers in care homes in England. From 11 November 2021 such workers will need to be fully vaccinated, or show they are medically exempt, as a condition of deployment in registered care homes. Employers in that sector are therefore having to ask staff to provide evidence of vaccination status and to consider redeployment or dismissal in relation to staff who refuse to have the vaccine. Employers in this setting have no choice but to implement these requirements – but how far can other employers go?
Google have indicated that they will be making it mandatory for workers to get vaccinated before returning to the office. Whilst initially this policy was applied to the US only, they have now indicated they will roll this out globally. In April 2021 the Equality and Human Rights Commission warned that blanket mandatory vaccination policies were likely to be unlawful. On 12 July 2021, Public Health England published guidance urging employers to encourage their staff to get vaccinated and suggesting practical steps for employers to take, including sharing the facts about vaccinations, offering paid time off to attend vaccination appointments and appointing senior leaders as champions to encourage vaccine take up.
A survey by HRLocker in January 2021 revealed that 23 percent of employers planned to make vaccination compulsory and 49 percent of recruiters stated they would prioritise vaccinated job applicants over others. A growing number of US businesses are mandating compulsory vaccination of their workers and it has been mandated that employers of over 100 staff have to ensure their staff are fully vaccinated or take weekly COVID-19 tests.
Recent NHS England data shows that 116,000 NHS workers still have not had a single dose of the vaccine.
But what are the legal implications of insisting that workers are fully vaccinated?
Whilst many employers will be encouraging staff to get vaccinated, many will stop short of insisting that this happens. Many will take the view that ultimately it is an individual decision. Employers clearly cannot insist that staff get the vaccine. The most they can do is either make it clear that new jobs will be conditional upon being vaccinated or ask staff to show evidence that they have had the necessary jabs. In the event that staff are unwilling or unable to show their vaccination status, would an employer be justified in terminating employment?
Employees with over two years’ service have the right to claim unfair dismissal if their employment is terminated and if a claim is made an employer must be able to show a fair reason for dismissal and that they acted reasonably in terminating employment for that reason. Whilst an employer may claim that health and safety reasons formed the basis of the decision to dismiss, it is by no means clear that an Employment Tribunal would accept that this was a sufficient reason for termination of employment. Aside from the care home sector, where the mandatory requirements are imposed in legislation, there is no such legal requirement for employers outside of this.
Whilst many might argue that being double jabbed is the right thing to do, and makes sense where staff are working in close proximity to other workers, not everyone shares that view. In the absence of compulsory legislation, employers taking a strict stance will have to justify such actions to an Employment Tribunal if an unfair dismissal claim was made. Judges may well take the view that other measures were available other than dismissal, such as workplace testing and that an insistence on being fully vaccinated was unreasonable in all the circumstances. It is also clear that for some groups, being vaccinated is not possible or not advised and a blanket policy of being fully vaccinated in such cases would be problematic.
Many commentators have also suggested that a blanket vaccination policy at work is likely to run the risk of successful discrimination claims for example discrimination against pregnant workers or those with health conditions which mean that vaccinations may not be advisable. Issues also arise with those who object to vaccines due to other reasons such as concerns about safety, or religious beliefs. Vaccine hesitancy amongst certain groups may also provide fertile grounds for claims of indirect discrimination.
Therefore, whilst many will share the view that it is the right thing to do to get vaccinated, there are limits on how far an employer should or can go to enforce mandatory vaccinations amongst their staff. Employers should tread warily before insisting that their staff are fully vaccinated as a condition of continued employment.
Are you considering your stance in relation to this issue? Speak to your usual contact in our Employment Team.