03/12/2020 – Under the Health and Safety at Work Act, employers are under a general duty to provide a safe and healthy workplace, and that includes taking reasonable measures to ensure employees don’t contract COVID-19. If all employees were to have had the COVID-19 vaccine, the risk of contagion within the workplace would be greatly reduced. Based on this logic we might be forgiven for thinking that the employer would have ample justification for insisting that employees are vaccinated, but of course, it’s not as straight forward as that.
Unless employers have a contractual right to require employees to take such vaccinations of the employer’s choosing, which will be highly unlikely, they will have to rely on whether their right to require employees to vaccinate is reasonable, given all the circumstances in hand.
Does the employer have a reasonable need for employees to vaccinate?
Taking our own company, myHRdept as an example, we’re an office-based company with 12 staff and while we have our own office, we share facilities with 30 other businesses. There’s a stream of external people attending site regularly – delivery drivers, maintenance, visitors to our and other businesses. Would we be able to insist our staff take the vaccine, while the business next door doesn’t? The fact that we can work from home with limited contact with others is significant too – whilst a vaccine is one way we can protect our staff, there are other ways open to us. For these reasons alone, it probably wouldn’t be reasonable for us to coerce our staff to take the vaccine, however sensible it would seem that they do.
It’s significant too that we don’t routinely deal with vulnerable people we might infect, if we didn’t take precautions to protect ourselves. Those of our clients who operate care homes and hospitals are in a different situation. They are better able to control visitor access than we are, and of course they routinely deal with vulnerable people and so are under an enhanced duty to minimise the risk of contagion, and therefore it follows that they are more likely to reasonably require their staff to vaccinate, and to take punitive measures if staff refuse.
Other industries may have different justifications. For example, faced with two identical restaurants, one with a sign saying “All of our staff have been vaccinated against COVID-19,” which restaurant would you prefer to enter? The one with the sign probably, but would that competitive edge entitle the restaurateur to insist that his staff are vaccinated?
The key to this difficult question is whether it would be ‘reasonable’ for a particular employer to insist that its employees are vaccinated, and reasonableness in this context will depend on the particular circumstances of the employer’s undertakings. It may be entirely reasonable for our clients in the care sector to insist their patient-facing staff are vaccinated, the evidence is less compelling in the restaurant example, although there is a case to argue.
Could an employer have a reasonable need to vaccinate some employees, but not others?
Whist our care sector clients might have a reasonable right to insist patient-facing staff vaccinate, it might not reasonable to expect, for example, some of their admin staff to vaccinate, particularly those who work in remote offices away from care settings. If one of those admin staff attends care sites in the course of his duties though, it would seem reasonable that he be required to vaccinate. Conversely it may be unreasonable to require his colleagues, who don’t go to sites, to do so.
The first job then is to establish whether, and who, it would be reasonable to require to vaccinate.
Communicating with employees
Assuming that vaccinations are reasonably available, the next step is to talk to employees, outlining the proposal that they vaccinate, and when and where this would happen in practice. Assuming staff agree, that should be the end of the matter, but of course some won’t agree, and some will be genuinely fearful of the potential side effects of a new vaccine.
The overriding duty on an employer when enforcing any contractual right, including the implied right of obedience, in this case to take the vaccine, is to be reasonable. Employers with a reasonable need for employees to vaccinate should plan for, and take the time to properly communicate and consult with their employees, explaining the benefits of the vaccine, and the reasons why it is necessary. This exercise will be important in any future legal proceedings, should the employer subsequently dismiss employees for refusing to vaccinate.
Employers might also consider allowing employees to vaccinate in work time. While not strictly necessary, doing so ensures that reasons not to vaccinate are further reduced, and may provide the employer a right to expect, and retain, a copy of vaccination certificates. That could be important in the care industry example, as an employer may rely on these to defend itself against claims arising from any future outbreak.
What if employees refuse?
Where an employee refuses to take the vaccine, employers (with a reasonable need for them to do so) should take the time to understand the reasons for the refusal, and should engage with the employee to see if objections can be overcome. A prudent employer may also look at the possibility of alternative duties before forcing the issue. Whilst it may be possible for those employers who can justify requiring vaccinations to dismiss refuseniks, no employee should be dismissed without having undergone reasonable consultations, and having been clearly warned that dismissal could be the outcome.
Are employees likely to refuse to vaccinate on grounds of religion/belief?
Some previous vaccines have been objected to on religious grounds, normally because they have contained a substance, animal fats for instance, that is not permitted by certain religions. Some religious leaders have in the past rejected these objections, and have advised followers of those religions that they should be able to take the vaccines. In order to succeed with a claim that a requirement to take a vaccine had a discriminatory impact on certain religions or beliefs, an employee would need to demonstrate good reasons to show that a religion would not permit the vaccine to be taken. This seems a high hurdle, and while we don’t yet know the ingredients of any of the likely vaccines, an effective argument on religious grounds on non-permitted foods seems unlikely. Aside from the ingredients, followers of some religions may object to vaccines and other medical treatments for different reasons, for example because they believe that vaccines and treatments undermine the core belief that only faith can heal.
The next part of this question concerns philosophical beliefs which, if genuinely believed by the employee, and if they impact on the employee’s lifestyle, can also be protected under the Equality Act. An employee would need to demonstrate good reasons to show that their belief would not permit the vaccine to be taken. While we’re not aware of any such beliefs, it may be that future case law will establish a particular belief that successfully argues this.
It is possible, albeit unlikely, that employees might be able to show that the requirement to vaccinate falls foul of discrimination law, but employers who have a genuine need for employees to be vaccinated (e.g. our care sector clients,) should be able to show objective justification for their requirement to vaccinate.
In a nutshell, we feel it is unlikely that employees would succeed in a discrimination claim against an employer who was able to demonstrate both a genuine need for employees to vaccinate, and a fair and even-handed approach to encourage and require their employees to do so.
Disciplinary procedure, or ‘some other substantial reason’?
Dismissal for not taking the vaccine in these circumstances could fall into one of two camps. It could be argued that it is the employee’s conduct which is the issue, and so the application of the disciplinary procedure with a series of escalating warnings (each proceeded by an investigation into the refusal,) could lead to a dismissal with notice. But a full conduct procedure takes time, and the employer may instead opt for a ‘some other substantial reason’ (SOSR) route, with the ‘substantial reason’ being, in the case of our care sector employer, the risk to patient safety as a result of a care worker’s refusal to be vaccinated. Either route requires, we would advise, legal advice and effective consultations with the employee, if the resultant dismissal stands any chance of being found fair by future employment tribunals.
Changing employment contracts to allow for vaccinations
As a last thought on the topic, a further option for an employer who is able to show a reasonable need for employees to vaccinate, but who does not have an express contractual right to do so, could in theory be the ‘termination-re-engagement’ approach. Under this approach, an employer would first make reasonable efforts to try to gain the employee’s agreement to vaccinate and, if unsuccessful, would (after a series of warnings,) terminate the employee’s contract with notice, offering re-engagement on a new contract of employment on the day following the end of the employee’s notice period. This new contract would contain the new right to require an employee to vaccinate in a suitably worded clause. Whilst potentially a lawful route, this option could take some time, as the consultation phase would require a number of weeks to properly complete, and the employer would need to allow for the higher of contractual or statutory notice, the latter being up to 12 weeks for employees with 12 or more years’ service.
Seeking help and advice
myHRdept will assist retained clients in developing an appropriate approach to staff, and can help employers evaluate whether they can require, or simply encourage employees to vaccinate. We can help draft scripts, letters and contractual variations as necessary, and our employee relations based approach may help employers achieve an amicable and agreed position.
The views in this article are entirely based on the opinions of staff at myHRdept, and the article is not intended to be an authoritative guide to the law around this topic. Employers are advised to seek advice on their particular circumstances.
If you’re thinking of outsourcing your HR or employment law needs, why not contact myHRdept? Call us on 01628 820515 to discuss your requirements or contact us and we’ll call you back.