Employment Law Partner Paul Maynard discusses the topic of mandatory vaccines for employees.
As I write this blog I am struggling with the aches, pains and shivers, which are the much reported side effects of the Astra-Zeneca Oxford Coronavirus vaccine, which I had yesterday afternoon. The thought of not having the jab never crossed my mind and like many I was mildly excited when the long awaited text message from the surgery came through.
But many in our population will refuse the vaccine when it is offered to them. Research by Kings College London recently estimated that as many as one in six of the population will decline, which presents a particular issue for those employed in the NHS or the care sector. So far the Government has resisted making it mandatory for NHS and care staff in England to have the jab, for fear that an edict from above will actually have the reverse effect in terms of take up.
Our employment team is increasingly being asked by private sector employers whether they can implement what is commonly known as a no jab no job policy. As ever there are arguments going both ways, but that is the last thing busy business owners will want to hear. Our answer therefore tends to be that for those employees who are not caring for vulnerable individuals not until the vaccine has been made available to the entire UK population. After that – probably, provided the policy is implemented carefully and has been properly thought through in terms of justification. Let me expand on that.
Firstly, the vaccine is currently only largely available to the over 50s. Implementing a policy now would potentially disqualify most of the younger population from either applying for or keeping their job. This would be indirect age discrimination. Indirect discrimination can be justified where the policy is “a proportionate means of achieving a legitimate aim”. Such a policy until full roll out has been achieved is unlikely to be considered proportionate.
The position will be different once the vaccine is available to the entire population and may even be different now where the entire workforce could have the jab if they wanted – for example the care sector.
Any policy must take into account that there are some employees who are unable to have the jab for medical reasons such as those with severe allergies, those with compromised immune systems and (currently) pregnant and breastfeeding women. To insist that such people have to undergo the vaccine or else lose their job runs the risk of either a disability of pregnancy discrimination claim. As before discrimination can be justified but a blanket policy may well fall foul of the proportionality test. In such circumstances the employer would have to be able to address various questions, chief amongst them will be:-
- given that most of the workforce and presumably members of the public that the employee will come into contact with have been inoculated, what is the risk that this particular employee will transmit the vaccine?
- will regular COVID testing and other precautions (eg masks and social distancing) suffice?
- can pregnant or disabled staff be redeployed (temporarily or permanently) to another role where the risk to others is less?
Assuming the policy makes exceptions for these categories of workers are there any other claims that the employer could face? Potentially, yes.
Employees enjoy protection against discrimination on grounds of religious or philosophical belief. That said, I have been unable to find any mainstream religion (with the exception of some obscure American religions based on faith healing) that currently outlaws vaccination.
Is anti-vaxxing capable of being a philosophical belief? To do so it must be a genuinely held belief rather than a viewpoint or opinion; about a weighty and substantial part of human life; attaining a degree of cogency, seriousness and importance and worthy of respect in a democratic society.
Ethical veganism has been held to be a philosophical belief – a belief in conspiracy theories around 9/11 and 7/7 on the other hand were found to be absurd. I suspect anti-vaxxing will come somewhere in between but ultimately where employees advance such arguments, employers will be expected to test the strength and cogency of belief in each individual case – and then apply the balancing test of justification.
Even those employees with no such protected characteristics could bring claims for constructive dismissal (assuming they have two years qualifying service) if the policy is applied in a heavy handed way, with no consultation and little justification. For example, where there is little prospect of the employee coming into contact with colleagues or members of the public it is likely to be unreasonable to impose the policy upon them.
In summary, a carefully implemented and properly justified no jab no job policy may well be possible. However, as ever, expert legal advice should be taken at the outset, throughout the implementation phase and whenever any challenge is received.