No jab, no job? Part 2

Last month we reported on new Acas guidance in relation to coronavirus vaccination and workplace testing. As mentioned, employers will need to become familiar with best practise and what is legally compliant when it comes to testing and vaccinations before implementing such schemes.

This month we expand on this topic and focus on the potential legal issues that could arise if an employer wants to require vaccination as a condition of returning to the office, receiving company sick pay or even as a requirement for continued employment.

There are a number of areas to consider in this field. To date the government has not made vaccination mandatory even for frontline workers so if an employer wants to make vaccinations obligatory or treat employees differently if they have not been vaccinated, they will need to be aware of the potential risks in doing so:

Discrimination

This approach could impact particular groups of employees with protected characteristics less favourably and therefore risks indirect discrimination and victimisation claims. Older workers are more likely to receive the vaccine first so any difference in treatment could be considered indirect age discrimination. People with certain conditions, for example some severe allergies, may not receive the vaccine due to their medical condition which might be considered a disability under the Equality Act, so taking a hard line on vaccination therefore could amount to indirect disability discrimination (or potentially even a failure to make reasonable adjustments).

Further some employees may not agree or want to be vaccinated because of concerns arising from the fact they are pregnant or breastfeeding or their religious or philosophical beliefs, such individuals could seek to bring a claim of indirect discrimination based on those protected characteristics.  To defend any such claims employers would need to have a strong basis for justifying their approach as being a proportionate means of achieving a particular legitimate aim.

Reasonable Instruction

It is very unlikely that current employment contracts would include a requirement for employees to have the vaccine or any recommended boosters. However, could an instruction from an employer to an employee be regarded as reasonable instruction so that failure to comply would be a disciplinary matter? There are potentially some sectors , for example, workers in a care home where an employer may be able to argue this is a reasonable instruction in order to safeguard the people being cared for. However, in most jobs, there is unlikely to be such a strong justification.  In any event, as vaccines are not 100% effective, it is unknown how long protection lasts and the position regarding transmission of the virus is unclear, such an approach would be risky.  Even with a strong health and safety aim, employees could raise a breach of contract or constructive dismissal claim in the event an employer tried to pursue disciplinary action if an employee has a good reason for refusing the vaccine.  Simply from an employee relations and reputational perspective taking such a hard line may have negative implications.

Each employer will face different considerations here depending on the nature of their business. Before relying on reasonable instruction arguments or deciding whether to add vaccine obligations into contracts for new employees, it would be worth discussing this with one of our team.

Health and Safety

Employers have obligations under health and safety law to make sure employees are working in a safe environment and to take steps to reduce workplace risks. Covid risks should be considered as part of this risk assessment and measures should be put in place to protect staff. The vaccine could be an additional measure and most employers are encouraging their staff to consider taking up the offer when they become eligible, but taking this further as a strict obligation is unlikely to be justifiable for the vast majority of workplaces unless the Government changes its position on mandatory status. Depending on your specific staff, visitors and customers you might be able to adequately address the level of risk posed through a combination of voluntary vaccination and other available measures such as social distancing, face masks, frequent cleaning, working from home and even regular testing.

The arrival of the vaccine and its increasing availability has led to more considerations for employers. This is a new area to navigate and will no doubt change as knowledge surrounding the virus and its transmission and Government guidance develops.  The FSP employment team would be happy to help with any queries you may have.