With the vaccine roll out gathering speed, a lot of employers are now left wondering what they can, or, better still, should do as the vaccine is rolled out to those of working age. It is clear now that vaccines are not going to be commercially available for some time, so employers are in the hands of the government for the foreseeable future.
Can employers insist their employees are vaccinated?
Yes, in theory, but actually no! You can have a policy that requires employees to be vaccinated, or try to agree a change to contractual terms, but ultimately if an employee refuses, there may not be much you can do without risk of legal action.
What underpins this question is that the government has not made the Covid-19 vaccine mandatory. In turn this makes it riskier for employers to insist their workforce get vaccinated even in the most obvious of cases.
So, what can employers do?
The best way to approach this is to revisit your health and safety risk assessment. If, having carried out an assessment, an employer deems it necessary to mandate the vaccine, then it could arguably do so and pro-actively ask employees to get vaccinated. You can then pull together a vaccination policy. The problem is what to do when you have a mandate and employees still refuse to be vaccinated. It would be risky to say this was a breach of contract or a breach of health and safety, so dismissal for misconduct would be off the agenda in most cases.
Some employers may want to consider whether existing employment contracts can be amended to include a provision that requires employees to be vaccinated as a condition of employment. However, as with any significant amendment, this will require employee consent. As consent is unlikely to be given, the change would probably have to be imposed and employers may have to dismiss the employees and offer to re-engage them on the new terms. This is not without risk and employers would have to establish a fair reason for dismissal in order to avoid unfair dismissal claims by those employees with more than two years’ service.
In these circumstances ‘some other substantial reason’ (SOSR) is likely to be the fair reason relied upon. It is possible that some employers would be able to establish that the need to ensure that all employees are vaccinated does amount to an SOSR, particularly where employees work with vulnerable groups such as in the health or care sector.
However, we would emphasise that at present this point is completely untested and it is difficult to predict what view a tribunal would take. Employers would also need to demonstrate that they had followed a fair process before imposing the change. Depending on the circumstances, there may also be additional risks, which we consider briefly below.
Ultimately, employers will have to deal with each case sensitively and each refusal will need to be considered on its own facts. Does the employee perceive a risk to themselves, are they a genuine anti-vaxxer or do they have medical reasons or religious beliefs that they are adhering to?
The discrimination risk
The Equality Act 2010 protects employees against discrimination on grounds of religion or belief. Most religions do not condemn vaccinations, so we do not envisage too many of these clear cases of religious belief. But what about veganism? Ethical veganism has recently been declared a belief, capable of being protected under the Equality Act. It is possible an employee who practices veganism may well be protected if they suffer a detriment or dismissal as a result of refusing the vaccine.
On the flip side, a recent tribunal decision declared that vegetarianism was not a philosophical belief capable of protection under the Equality Act, due to the wide range of different reasons for which people chose to be vegetarian. A generic belief against vaccinations is unlikely to be protected, because the reasons for holding this belief will differ between individuals. Any specific belief held by an employee will need be a cohesive and a serious conviction, rather than an opinion based on the present state of information available.
The key is to engage with any employee refusing the vaccine in order to address and overcome their concerns. As part of this, employers could consider involving independent parties, such as a medical professional, to give informed and unbiased advice on the vaccine.
- Review and update your risk assessment(s).
- Set out a programme of encouragement and support – e.g. time off to be vaccinated, support getting information.
- Be aware of discrimination claims creeping in.
- Do not stereotype employees. Just because an employee is vegan, or has a belief (religious or otherwise), it does not mean they will refuse to be vaccinated.
- Consider developing a vaccination policy. This will cross-refer to the risk assessment. If you are going to mandate the vaccine, make sure this approach can be justified and that it is proportionate in achieving a legitimate aim (such as maximising numbers of employees who can attend work).
- Review the ACAS guidance and watch out for more advice and guidance from the government.
- Decide if you want to amend contracts of employment to introduce a contractual requirement that employees get vaccinated; to do so would amount to a change in terms and conditions and so has added complexity and risk.
- Record your rationale at every stage and makes sure it is compliant with the Equality Act 2010.