No Jab No Job! Is it lawful for employers to refuse employment?

At the time of writing almost 18 million people in the United Kingdom have had their first Covid-19 vaccination of either the Pfizer or the Oxford AstraZeneca offerings. The Government also maintains that all adults in all 4 nations of the United Kingdom will have been offered their first vaccination by the end of July 2021. This is quite a remarkable feat for a country of some 50 million adults and has manifestly contributed to the Government’s 4-stage plan to gradually open up wider society and the British economy by June 2021.

This has however caused some employers to question whether it should be a mandatory requirement for their staff and especially new staff to have had their Covid-19 vaccinations and to make this strictly conditional on continuing or being offered employment.

This is a controversial issue which has been brought into the spotlight by Pimlico Plumbers’ Charlie Mullins who recently announced changes to his employment contracts which now make it a strict requirement for their staff to have had a Covid-19 vaccination. He boasted that his lawyers had already drawn up new staff contracts making it a strict condition of employment and hire.

Whilst the Government is not making vaccinations mandatory, it brings into question whether employers can legally insist that their staff have the vaccination in order to enable them to attend their place of work and continue in their employment, working alongside colleagues and clients.

An official spokesperson for the Prime Minister, Boris Johnson has already stated that requiring staff to have the vaccine in order to keep their job is a form of discrimination. It is therefore clear that any type of ‘No jab No job’ policy is not simple and could lead to an increase in employment tribunal claims both for unfair dismissal and unlawful discrimination.

It is true that employers are under a legal duty to take reasonable care of the health and safety of their employees and to provide a safe place of work and a safe system of work. This obligation is enshrined in our health and safety laws going back to the 1970’s. This has not changed in the post Covid-19 era.

It is certainly possible for employers to introduce a Covid-19 policy aimed at persuading staff to take up the offer of the vaccinations through a system of informing staff and bringing in health experts who can discuss the pros and cons of having the vaccination. Healthy persuasion would certainly be better than introducing and forcing through a mandatory policy and threatening staff with dismissal if they fail to take up the offer of a vaccination.

In some sectors for example care homes, it may well be considered a reasonable requirement for such frontline staff to be vaccinated as there is more of a real risk that they could infect others. In the event that staff refuse to be vaccinated then consideration should be given as to whether there are any alternatives for redeployment. If this is not possible it might well be lawful to discipline and dismiss an employee. The employer will need to provide evidence that it has balanced the concerns of the employee against the wider needs of the business, its staff and clients, for example elderly residents. It is a tricky balancing act and is likely to increase legal risks.

Notwithstanding this and away from the nursing and care sectors where there are high infection risks, it is highly probable that employers who dismiss staff or refuse to hire them because they refuse to have a Covid-19 vaccine, could face a challenge in the employment tribunal on the grounds of unlawful discrimination. This is especially so where there is less contact with others and Covid-19 secure measures can be implemented in the workplace.

There could for example be exposure to age discrimination claims from younger members of staff or candidates for employment where the vaccine is not yet available to them or in circumstances where it is not suitable. If the vaccine is not suitable for example on health grounds then this could give rise to claims for disability discrimination, where the individual in question has had an underlying health condition for more than a year and is advised against having the vaccination by their medical advisers.

We have also heard in the media that take up of the vaccination is lower amongst BAME (Black, Asian and Minority Ethnic) people which strikes at the heart of the protected characteristics of race, religion and philosophical beliefs.

Some people believe rightly or wrongly that the vaccinations contain alcohol or animal products or may simply believe that it is against their religion and beliefs to have the vaccine or to have what they consider to be foreign bodies being injected into their system. They may generally have more reservations compared to other racial and ethnic groups. It isn’t difficult to see that employers who dismiss staff or who reject applications for employment on such a basis could also face claims for race and/or religion and belief discrimination. It could even be argued that certain negative views on vaccinations form a philosophical belief which is also a protected characteristic. This area of the law is increasingly being tested and expanded.

There are also some women who may fear that the vaccination might affect their fertility and/or unborn child and who refuse to have the vaccination with many having concerns about how quickly these Covid-19 vaccinations have been rushed out. Some women are also aware of the drug thalidomide used in the 1960’s which caused deaths and birth defects to babies and children. If they are refused employment for refusing the vaccination then they could bring claims for sex and pregnancy related discrimination. It is therefore important that employers seriously consider whether it is a strict mandatory requirement for their business for such staff to have the vaccination and individual cases should be dealt with carefully and on their own merit.

There are also data protection implications that need to also be considered if the employer processes any sensitive employee personal data as a consequence of the requirement for its staff to be vaccinated. There are many hurdles to overcome in obtaining medical consent from GP’s and medical staff, and medical data is also sensitive data. Even information about staff who have and who have not been vaccinated will constitute sensitive personal health data and employers will need to comply with GDPR requirements or risk complaints to the Information Commissioner. This is a topic in itself.

If, as with Pimlico Plumbers, the employer makes changes to its terms and conditions making it a contractual requirement to have the vaccination, then this could be a unilateral change to their employees’ existing terms and conditions. This means that if an employee objects to the changes and is dismissed then the employer is exposing itself to unfair and constructive dismissal claims.

The employer could dismiss an employee on the old terms giving notice and offer re-engagement on the new terms with the mandatory vaccination requirements but it is still a risk that the employee will refuse and will resort to litigation. Employers will probably be able to take on new hires who agree to the new vaccination policies, however this risks the creation of a two-tier system if they join working alongside employees who refuse to be vaccinated and where the employer agrees not to dismiss them because they consider the legal risk too great. In short it will not achieve the aim of 100% vaccination of the workforce.

Another issue for consideration is providing proof or vaccine passports that employees and/or individuals have been vaccinated. This is also currently being debated in the media and is being considered by the Government. It is easy to forge such proof even with vaccination certificates, and with the use of modern-day Apps and QR codes. The only thing that will provide comfort to employers is an authentic signed letter from their GP or medical adviser, however demand may make the process for providing such proof quite time consuming.

The issue of forcing staff to have the vaccination in order to keep their jobs is highly controversial from a moral perspective and is full of legal risk. As ever it is always best to seek timely independent legal advice on your individual set of circumstances and to look at the options available to an employer and to consider a reasonable approach and strategy.

If you have any concerns or questions about the issues raised then contact Steven Eckett, Partner and Head of Employment at Meaby & Co LLP.

E-mail: seckett@meaby.co.uk or Telephone: 020 7703 5034.