No Jab, No Job
As the country’s vaccine programme surges ahead, it is inevitable that there will be several speed bumps along the way, especially regarding the opening up of the economy and the ensuing HR implications.
Recently, the owner of Pimlico Plumbers, Charlie Mullins, said he would not hire anyone who had not received the vaccine and, also, that the vaccination of his entire workforce was a ‘no-brainer’. In response to this, Vaccines minister, Nadhim Zahawi, said it would be ‘discriminatory’ for employers not to hire anyone who had not been vaccinated and dismissing an employee who refused to have the coronavirus vaccine could lead to an unfair dismissal claim. However, government messaging on this topic has not been entirely consistent, with justice secretary Robert Buckland saying that it may be legal for companies to insist on new employees being vaccinated as a condition of their employment. Given this is an issue that is likely to persist throughout 2021 and beyond, what are the key considerations for employers in respect of the coronavirus vaccination scheme?
Is asking staff to take the vaccine a reasonable instruction?
The government has already stated that it hopes to persuade people to get a vaccination and that vaccination by coercion is not an option.
In some limited circumstances, there may be grounds for an employer to issue a ‘reasonable instruction’ to take the vaccination to all its employees and that would allow the employer to take disciplinary action should they not comply.
Reasonable instruction is not a silver bullet, however, and this is a risky strategy. Employers must be able to prove that unvaccinated employees are not only a risk to themselves but also a substantial risk to others. It may be reasonable, for example, for frontline health workers to be instructed to get the vaccine as they pose a considerable risk to other people, but even in these circumstances there will be significant risks if refusal to have the coronavirus vaccination is related to a protected characteristic. Moreover, in other industries where contact is limited, it will not be a reasonable request.
Introducing an immunisation clause into contracts for new starters and being clear about any requirements in this regard during the recruitment process would be a more reasonable approach to take but, even here, there will be risks around refusals to have the vaccination on the grounds of a protected characteristic.
Refusal to take the coronavirus vaccine
There are many legally valid reasons why people may refuse the jab. People with severe allergies, pregnant women and those with certain philosophical and religious beliefs may all have legitimate concerns about taking the coronavirus vaccine.
Some staff may also be generally anxious about vaccines in general and the coronavirus vaccine in particular. Instances of what the World Health Organisation refer to as ‘vaccine hesitancy’ are particularly prevalent in Black or Black British Groups in the UK and must be treated respectfully.
Employers should discuss concerns and direct employees towards reliable impartial information about the coronavirus vaccination before taking action against employees who refuse to take the coronavirus vaccine. Advice should be taken before taking disciplinary action against employees who refuse to take the coronavirus vaccine because of the risk of discrimination claims.
As mentioned earlier, certain philosophical beliefs may provide employees who refuse the coronavirus vaccine with protection under the Equality Act 2010. However, this protection does not apply to many internet conspiracy theories including the belief that the coronavirus vaccine will modify our DNA; that Microsoft founder Bill Gates will use these vaccines to implant trackable microchips into our systems; or that the vaccination programme is part of a secret plan to control the population. Similarly, it does not apply to the QAnon view that the vaccination programme is part of a plot by the “deep state” to enslave humanity.
For something to be considered a protected philosophical belief, it must be worthy of respect in a democratic society, must attain a level of cogency, seriousness, cohesion and importance and have a similar status to a religious belief. Most people agree that Anti-vaxx and QAnon ‘belief’ systems would not stand up to this level of scrutiny.
In order to support employers with the employment law challenges posed by the coronavirus vaccination programme, a number of documents on this topic will be added to the Employment folder. A letter encouraging employees to have the coronavirus vaccine has just been added and others will follow shortly.
The contents of this Newsletter are for reference purposes only and do not constitute legal advice. Independent legal advice should be sought in relation to any specific legal matter.