Can I encourage staff to have the Covid Vaccine or even make it mandatory?
When the Covid-19 vaccination programme started, Charlie Mullins, chairman of Pimlico Plumbers was one of the first to announce that the business was going to introduce – what has now been dubbed – a “no jab, no job” policy. He also said that existing staff would be given new contracts requiring them to be vaccinated against the coronavirus. This was met with mixed reviews, some applauding the stance but others – including employment lawyers – warning of the risks of such an approach. The government’s vaccines minister, unwilling to get drawn into the debate, went on to say publicly that it was “up to businesses to decide what to do” but that the government did not yet have the evidence of the effect of vaccines on transmission.
Can we make the vaccine mandatory for our staff?
This is a complex issue and one that cannot be answered with a simple “yes” or “no”. You need to have a strong justification for introducing a policy in the workplace where you are making mandatory something that many would regard as a personal choice. It is, after all, not unlawful to refuse to have the vaccine as the government has not made the Covid-19 vaccination compulsory.
The reason you need a strong justification is because of the potential legal ramifications that a blanket mandatory vaccination policy could have for your business. Admittedly the risks are greater if you are trying to impose the policy on existing staff than new recruits, but the legal issues are broadly the same.
First, there is the possibility of discrimination claims arising if you take disciplinary or other detrimental action against an employee for refusing to have the vaccine or if you reject a job applicant because they will not have the vaccine. If the reason for their objection is connected to a protected characteristic (e.g. a philosophical or religious belief or is due to disability) then you risk a claim of indirect discrimination.
A claim for indirect discrimination arises where you, the employer, apply a policy, condition or practice that disadvantages a group of people who share a protected characteristic and that policy, condition or practice is not objectively justifiable. This is why, as mentioned at the outset, if you are going to considering implementing a mandatory vaccination policy, you must be confident that you can demonstrate a strong justification for doing so and that you have considered other, less intrusive, alternatives. Otherwise, you leave yourself exposed to claims which you will find hard to defend.
Secondly, there is the possibility of unfair dismissal claims arising if you decide to dismiss an employee for refusing to have a vaccine and that employee has more than 2 years’ continuous service with you.
You would have to show that the reason for dismissal was a fair one and that you followed a fair process before dismissing. As you would expect, there are no cases on this as yet, but factors that are likely to be relevant in deciding whether someone has been unfairly dismissed for refusing a vaccine will include the employer’s reason for insisting on the vaccination, the employee’s reason for refusal, the nature of the employee’s role and whether any other options were available to reduce the risk of infection. Of these factors, the nature of the employee’s role is going to be very important, because there will be roles – for example, in the social care sector – where an employer will be justified in insisting that the employee have the vaccine and removing the employee from that role if they refuse.
Thirdly, there are the health and safety considerations associated with the vaccine itself. It is a new vaccine and, whilst thoroughly tested, there is always the possibility that some people may have an adverse reaction to it. If you mandate the vaccination among your staff, you need to be prepared for the possibility that if a member of staff has an adverse reaction to it, this could result in the finger of blame being pointed at the business – if not necessarily a claim. This is why it is strongly advisable to consult individually with staff before they have the vaccine.
When is a vaccination policy justified?
Employers are under a duty to protect the health and safety of their workforce and to take steps to reduce workplace risks. If an employer carries out a workplace risk assessment and concludes that requiring staff to have the vaccine is the most effective and reasonable course of action available to it in order to protect the health and safety of other staff or customers, then this could potentially be a legitimate and justifiable reason for introducing a mandatory vaccination policy.
This justification is more likely to be made out in workplaces where it is difficult to manage the risk of infection other than by requiring all staff to be vaccinated – for example, where the work involves close physical contact with others or working with vulnerable people. However, if the risk can be effectively managed by alternative measures such as social distancing, ensuring the workplace is hygienic and ventilated, working from home, regular Covid-19 testing, and so on, then it is unlikely you will be justified in requiring vaccination.
Can we encourage staff to have the vaccination?
Yes, as long as you approach the issue with staff carefully, are sensitive to any objections made and ensure that the encouragement does not turn into pressure, which in turn could give rise to potential claims. Please see “How should I approach staff about vaccinations in the workplace” for guidance on how best to raise the issue with your staff.