We have already received enquiries from employers asking whether they can insist on employees being vaccinated against Covid-19 and either not employing or dismissing those who refuse.
There is not currently any legal requirement for people to have the Covid-19 vaccination, and we would be surprised if it became mandatory. Not everyone can have the vaccination yet, with the Government setting the order of priority for those being offered it and age being a significant factor in that order of priority. So at the moment refusing to employ someone (or terminating their employment) who is not yet eligible is likely to be age discrimination.
However, we know that some employers are asking staff to let them know and provide proof once they have been vaccinated.
Refusing to employ new staff
Just as an employer might stipulate in a contract of employment that an individual must hold a particular qualification as a prerequisite for the job, it’s possible that companies might require individuals to provide evidence that they have been vaccinated as a requirement for employment.
The problem with this approach is that there may be reasons why someone is not able to have the vaccine, for example if they have a particular medical condition preventing them from being vaccinated, or where it is not advised, for example if they are currently pregnant. Alternatively, the individual may object on religious grounds.
In such cases, a requirement to be vaccinated would be indirectly discriminatory, in which case the company would need to justify why they have such a requirement.
Absent any good reason for refusing to be vaccinated, the employer is likely to be justified in refusing employment to such a person, simply on the need to provide a safe working environment for the rest of its staff.
Dismissing existing staff
Not only do the above points apply to existing staff, but in addition employees with more than two years’ service would also have the right to claim unfair dismissal unless the employer can prove that the dismissal is fair.
It is possible that within some sectors customers or clients may refuse to deal with staff who have not been vaccinated. For example, customers of care providers or of the hair and beauty sector.
It might be possible to move employees to work with alternative customers. However, if the majority, or all, customers require those they are coming into contact with to be vaccinated it may get to the stage where the employer is unable to offer work with alternative customers. In any event, this approach would leave the employer vulnerable to claims that it was not providing a safe working environment.
Before getting to the stage of dismissal, the employer would need to show that they have looked at alternatives to dismissal. For example, the continued use of PPE or being moved to a different job that does not involve working with customers.
It is our view at this point that an employer would be justified in requiring vaccination on the basis of providing a safe system of work, provided always that the employer has considered, (and documented those considerations,) all other possibilities, balancing the effect of the requirement on the employee, with the risks and dangers of not having that requirement to the rest of the workforce.
The legal issues to consider include:
The flip side
On the other side of this coin, we are also seeing questions from employers where staff are refusing to attend work when required to return from furlough unless their colleagues are vaccinated.
The employer must start by looking at whether or not they can provide a safe system of work for the employee and why the employee feels vulnerable.
If the reason is that the employee should be shielding, then the employer is well advised to allow the absence until that employee is vaccinated. If it is because the employee is simply nervous, then the employer should take GREAT CARE to ensure that they explore the risks with the employee and agree solutions, rather than simply dismissing the employee. To do so exposes the employer to a claim that the employee is dismissed for raising health and safety concerns and this is a huge reputational and financial risk.
Given the possible legal pitfalls, as well as the potential sensitivities some people have around vaccination, employers should take advice before imposing a requirement that staff are vaccinated, or that they attend work against their will.
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