No 'Jab', No Job..?

Of course, the majority of individuals will have the vaccine when offered, so there should be no issues for the employer. However, there may be those that refuse the vaccine, or are unable to have it prior to the employer reopening its offices. This may concern employers trying to comply with their statutory and contractual duties and prevent further closures or staff absences on the basis of a COVID-19 outbreak.

It is important to remember here, that an employer may be forcing an individual to have medical intervention against their will. Whilst very little can be guaranteed at this early stage, one thing that we can be sure of is that we need to find a balance between the safety of staff and customers and the protection of civil liberties. Employers must continually ask themselves; Is it necessary for my staff to have the COVID-19 vaccine and as such, for me to make this a mandatory requirement?

Starting point

The easiest place to implement this policy is in the Employment Contract of any new employees. When signing their Contract, a new employee would agree to be bound by such terms. Employers should make all potential employees aware of the requirement at interview stage, prior to them signing the Contract. This is currently being done by a number of large private care providers, such as Care UK, who considers such a policy necessary to protect its elderly and vulnerable patients. However, legal advice should be taken before doing so, as potential discrimination issues may arise, but could be limited using a number of practical steps. An employer may believe this sufficient to protect the majority of its staff and customers, particularly if it is already aware that all its staff intend to accept the vaccine, if they haven’t already had it.

However, if the employer considers that, in fact, it is necessary for all its new and existing staff to be vaccinated, then a practical starting point for the employer may be to give employees notice in writing that such a policy will be put in place by a certain date and that any objections should be made in writing with reasons. This will give the employer notice of whether any employees are likely to refuse the vaccine, dispute the terms and the grounds upon which they are likely to do so.

If no reasons for refusal are provided and it does not expect anyone to refuse the vaccine, a new term of the contract can be agreed between the employer and employee. A small payment could be given to the employees for agreement to the same.

If the employer is provided with reasons for refusal on the grounds of age, race, religion, maternity or disability, it should focus particularly on the Discrimination section of this blog, below. Employers should not put a policy in place that would put a particularly individual or group of individuals at a disadvantage and it may have a duty to make reasonable adjustments. An employer may be able to work with such employees to find other ways to provide protection, such as increased social distancing, remote working and PPE. It is advised that, if this situation occurs, you seek legal advice before taking it any further.

Existing employees

To any employers that wish to implement the requirement for a vaccine for existing employees, having followed the above steps, an employer should firstly consider ‘Does a term allowing us to implement this, actually already exist?’ There may be a term in the Contract which requires an employee to adhere to certain reasonable requirements or directions put in place by the employer for the performance of their role. We can of course review your contracts to advise you of the same if you are unsure.

If not, an employer may be able to unilaterally impose a requirement for all employees to be vaccinated through one of the following, if again, it considers this necessary:

A flexibility or variation clause in the Contract;

A new term in the handbook, if this is incorporated into the Contract; or

Through an implied term of the Contract.

After any of the above, the refusal by or inability of an employee to have the vaccine may mean that the Contract has been breached and the employer can dismiss them as a result. However, it is important to remember that refusal is distinguishable from impossibility. More on this can be found under Discrimination: Age, below.

Unfair dismissal

An employer may believe it to be essential for an employee to be vaccinated, due to the nature of their role, e.g. contact with customers, close proximity to other staff, travel. If an employer chooses to dismiss an employee of their refusal to have the vaccine, its reasons for doing so would likely fall under the legal heading ‘Some other substantial reason’. Case law has confirmed that this can include reasons such as reputational damage; a breakdown in working relations which affects the harmonious running of workplace and as a result, the service provided and third-party pressure. Whatever the reason, the employer would need to show that the dismissal was a reasonable reaction and mitigate any potential injustice against the employee. Therefore, the employer might first consider whether anything else can be done, other than dismissing the employee. It is strongly advised that, where an employer considers dismissing one of its employees, that it seeks legal advice.

However, employers should be cautious of an employee resigning as a result of the implementation of the requirement of a vaccine and claiming constructive unfair dismissal on the basis of breach of contract (i.e. that the employer’s actions were such that it made it impossible for the employee to work in such an environment). This is a serious possibility and puts the employer in a vulnerable position, if the context of the job role does not provide any real reason to make the vaccine a necessity. In addition, if an employee is bound by restrictive covenants in their Contract, any breach of Contract by the employer would render the Contract, and as a result, the covenants, null and void. This may be an incentive for an employee to resign on the basis of constructive dismissal.

However, a cautious approach should be taken if this is your motive as an employee. If your employer disagrees that there has been a breach of Contract, it could seek to prove that there has been no constructive dismissal and claim injunctive relief against you, limiting your ability to find alternative employment. This process will be both lengthy and expensive for both parties.

Discrimination

It is essential for employers to consider potential issues of discrimination when implementing this policy and whether for these individuals, refusal to have the vaccine may be reasonable. If so, a requirement for employees to be vaccinated has the potential to cause indirect discrimination, discrimination arising from a disability or failure to make reasonable adjustments, all in breach of the Equality Act 2010. Discrimination is a serious claim for an employer to have made against it and damages for a successful claimant are uncapped.

Age: Age is likely to be a very common issue if an employer imposes the requirement to have the vaccine by a certain date. As we know, the vaccine is being rolled out in stages, with younger people likely to receive the vaccine later than others. Therefore, any deadline for obtaining the vaccine should be considered with caution and implemented only if necessary. Remember, inability to obtain a vaccine is different from refusal and therefore, unless the employer is offering to pay for the employee to have the vaccine administered privately at an earlier date than they otherwise could obtain it, deadlines earlier than, say, September 2021, should be avoided. An alternative option would be for the employer to place the individual on furlough, which has been extended until September 2021, until they have been able to obtain their vaccine.

Disability: Many individuals with a disability are likely to have already been offered a vaccine. Therefore, if they have refused, it is important to consider their reasons for doing so. There may be serious potential threats to their health in having the vaccine, which makes it unreasonable for an employer to insist that they do so. There is also evidence to suggest that there may be side effects of the vaccine for pregnant women and their foetus, so caution should be taken here as this may have been refused on reasonable grounds and a Tribunal is unlikely to find that any dismissal was a fair response, unless in exceptional circumstances and for the safety of others. An employer should seek to work with such employees to make reasonable adjustments to their policy and working arrangements to encourage a safer environment without the need for a vaccine.

Race: There has been research to suggest that individuals of some ethnicities may be more seriously affected by side effects of the vaccine and as such, a blanket requirement for all employees to have a vaccine may indirectly discriminate on those who may refuse it for fear of its implications on their health. Again, the employer should work with such employees to address their concerns and implement alternative safety measures.

Religion & Belief: This is a very complex area, which should be approached cautiously by employers when considering the implementation of a requirement for the vaccine. Whilst some religious leaders, such as Pope Francis, have confirmed that there is no reason to refuse the vaccine on the grounds of faith, individuals can have varying beliefs, even in the same religious group. Some religious individuals, such as Jehovah’s Witnesses and Scientologists, for example, are likely to always refuse the vaccine. Legal advice should be obtained, should the vaccine be refused by employees on religious grounds.

My approach

My general approach to this subject is that employers should avoid imposing the vaccine requirement on staff wherever possible. Instead, employer should consider making clear that vaccinations are ‘strongly encouraged’ and assist employees in obtaining them, such as allowing flexible or remote working, or even paid annual leave, on the day(s) they get their vaccine.

Any dismissal or constructive dismissal on the grounds of refusal is likely to be highly contested at the Tribunal and will result in parties incurring significant costs on an evolving area of law. Employers should also seriously consider any reputational damage a claim in the Tribunal could bring.

Whilst the law clearly allows some freedom on employers to impose a requirement for its employees to have the vaccine, it is essential to consider the likely approach of a Tribunal to the situation. It will look to balance the necessity of staff vaccinations for the employer’s business against the reasons for refusal of the employee. It will be considered on a case-by-case basis and undoubtedly, the bar will be high for the employer to demonstrate its case.

The context of the business and the employee’s role is bound to be the starting point for the determination of whether the requirement to vaccinate is necessary. For example, care workers that have daily contact with elderly and vulnerable patients are very likely to be able to justify such a requirement, as we have already seen. Conversely, an employer whose employees work from home or in their own office with little contact with clients or staff are unlikely to be able to justify the dismissal of staff that refuse the vaccine. In such a case, employers should work with the employees to try and find other ways to protect other colleagues and clients, such as increased social distancing, the wearing of PPE and/or remote working.

How we can help

If you are a business owner, considering imposing a requirement for new or existing employees to have had the COVID-19 vaccine, we can review your current employment Contracts, handbooks and staff profiles to determine whether such a requirement is suitable. If so, we can discuss how best to implement the same, deal with those that refuse and handle any potential claims which may be brought as a result. Of course, the aim here is to prevent any claims arising in the first place, so please seek legal advice earlier rather than later.

If you are an employee that wishes to dispute the implementation of such a requirement upon you, or you intend to refuse the vaccine, we can evaluate your employer’s reasons for implementing this requirement and evaluate your reasons for refusal. We can assist you in drafting and submitting your refusal with your employer and advise you on your options moving forward.

Ultimately, there are likely to be a small percentage of individuals that refuse the vaccine and as a result, few cases of employees that dispute the policy. Nonetheless, we want to work with employers to ensure that, if such requirements are being implemented, they are done so in a way that is fair and accommodating of its employees. The best approach that an employer can take, is to work with any employees that refuse the vaccine to come up with other ways to ensure the safety of its staff and customers and we can help to facilitate this.