Covid-19 vaccines – will this good news story cause a headache for employers?

The roll out of the Covid-19 vaccines in the UK has been hugely successful, with over 82m doses now having been administered and every adult in the UK now having been offered a first dose.

Unfortunately, the emergence of the highly contagious Delta variant has meant that case rates are again rising rapidly, and public health officials have made it quite clear that the pandemic is far from over. Whilst take up of the vaccine amongst older adults has been high, this has reduced significantly amongst other adults. In London for example, which has a high proportion of young people and an average age of 35, approximately one third of the adult population is yet to have a first dose.

Vaccine hesitancy therefore continues to be a big problem for the government despite numerous campaigns and initiatives designed to increase uptake of the vaccine. It may be an increasing problem as the removal of restrictions coincides with a rapidly developing “third wave” which is expected to disproportionately affect young adults along with others who have yet to be vaccinated.

This may also be a problem for employers. As restrictions are removed, employers may want to get more of their staff back into the workplace but may be concerned that unvaccinated employees pose a risk to other employees or to members of the public with whom they come into contact.

This has been of particular concern to the care sector where employees are likely to be working with the most vulnerable groups who, whilst mostly vaccinated, are still at risk from Covid-19. In England, the government has decided to legislate against this risk and have introduced regulations which will mean that anyone working in a care home in England must have had two vaccine doses, unless they are medically exempt. This will also apply to tradesmen, hairdressers, beauticians, entertainers and others who work within care homes. The regulations are expected to come into force by November 2020. The Welsh and Scottish governments have confirmed that they have no similar plans.

However, what is the position of other employers (and care home operators in Wales) faced with employees who refuse to have the vaccination?

Can an employer require employees to be vaccinated against Covid-19?

For some employees, this will be a sensitive issue that will require careful communication with both the employees and (where applicable) their staff representatives.

The government has not legislated that the Covid-19 vaccine is mandatory outside of the care sector, so it is risky for employers to insist on vaccination, even in an environment where there is often close contact and the risk of transmission is higher.

ACAS has produced guidance which advises that employers should support staff in getting the vaccine but, aside from care homes in England, cannot force them to be vaccinated. However, it acknowledges that it may be necessary to make vaccination mandatory where it is required for someone to do their job, for example where they travel overseas and need to be vaccinated.
We look at some of the issues in more detail below.

Encouragement and support

Undoubtedly, the best outcome for both parties is for employees to agree to vaccination without the employer having to resort to a policy of mandatory vaccination. However, employees may be worried about the side effects of the vaccine and a great deal of misinformation is still being spread about vaccines, particularly on social media and this may be influencing employees. It is perhaps no coincidence that the youngest age group is the most hesitant, as they will be the most frequent users of social media. Misinformation has also been spread about the use of certain animal products in vaccines, which may still be of concern to some religious groups despite a widespread campaign to combat this.

Employers should therefore engage with those employees who are refusing the vaccine in order to address and overcome their fears. As part of this process, they may wish to consider involving an independent party, such as a medical professional, to give informed and unbiased advice on the vaccine itself and the benefits of having it. Young people, in particular, may feel that they are at little risk from the virus, but a health professional may be able to give additional information, such as information on the potential long-term effects of infection, which will help them come to an informed decision.

Those who still refuse

There may still be employees who refuse the vaccine despite the best efforts of employers to persuade them otherwise.

Can employers force these individuals to have the vaccine? In reality, they cannot, as the administering of a vaccine is a medical procedure which can only be performed with an individual’s genuine consent.

However, could an employee be disciplined for refusing? Leaving aside those working in care homes in England, we would suggest not, as it is not a legal requirement for anyone to be vaccinated. It is highly unlikely that most employment contracts would contain a provision requiring an employee to be vaccinated and a refusal to have the vaccine is therefore unlikely to amount to misconduct.

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 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.

Other risks

Where employers are considering a policy of mandatory vaccination, other risks could include:

• Collective consultation – if employers need to dismiss 20 or more employees, the statutory consultation requirements are likely to be engaged and the employer would also need to inform the Secretary of State within the statutory timescales (which depends on the number of affected employees).
• Any available vaccine may not be suitable for all e.g. those with suppressed immune systems. In order to avoid arguments of disability discrimination (where an employee is unable to get the vaccine because of a health condition) any requirement would therefore need to allow for exceptions.
• It is also possible that certain religious or moral objections to the vaccine could come under the protected characteristic of religious or philosophical belief. There may also be a question as to whether ‘anti-vaxxers’ are covered by philosophical belief.
• Human rights arguments – it is possible that employees forced to have the vaccine could bring a challenge under the Human Rights Act.

New employees

Some employers, particularly those operating in the care or other public facing sectors, have already started introducing a contractual requirement that all new employees must be, or agree to be, vaccinated.

That is generally something which they can do, but they will need to take care not to risk a discrimination claim by adopting this as a blanket policy which does not allow for exceptions. Whilst the risk of an age discrimination claim is now diminishing as the vaccine becomes available to all adults, there may still be a risk of discriminating against those with other protected characteristics e.g. those who cannot be vaccinated for medical reasons.

Summary

Introducing a contractual requirement that all existing employees must be vaccinated would amount to a change in terms and conditions and, in most cases, would represent a risk to employers. An ‘encouragement and support’ approach is therefore still favoured wherever possible, rather than insisting upon it as a contractual term. The exception to this is in respect of care home staff in England, who will be subject to mandatory vaccination requirements later this year.