Nearly a year on from the start of the pandemic, many employers and employees will be attracted by the prospect of a workforce that is fully vaccinated against Covid-19, which may take them closer towards a safe return to “normality”.
Mandatory vaccination is not expected at a national level – public health legislation expressly prohibits it and the Prime Minister stated in November that “that’s not the way we do things in this country”. Yet, in spite of the government’s position, we have seen at least one employer publicly commit to a “no jab, no job” policy in recent weeks.
The notion of mandatory vaccination has set alarm bells ringing for many. Culture and medical ethics aside, mandatory vaccination is certainly an employment law minefield for a host of reasons.
Firstly, employees with the necessary qualifying service may bring unfair dismissal claims, if dismissed because they have refused to be vaccinated. To defend these claims successfully, the employer would need to show a fair reason for dismissal and that the employer acted reasonably in treating that reason as a sufficient reason for dismissal. Individual circumstances matter, including the employee’s particular duties and workplace.
One of the biggest issues that employers will face is the risk of discrimination. Employees (and this extends to employment applicants) have legal protection from certain forms of discrimination under the Equality Act 2010 and there is abundant potential for a mandatory vaccination requirement to clash with these rights.
For example, employees could assert age discrimination because the JCVI guidance on priority groups for coronavirus vaccination prioritises vaccination for older employees. An employer’s requirement for vaccination therefore has the potential to discriminate against the relatively young.
Mandatory vaccination policies could also give rise to claims relating to sex, pregnancy and maternity discrimination, given that pregnant women, and those who are breastfeeding, may also struggle with an employer’s vaccination requirement. The health authorities state that, although the available data do not indicate any harm in pregnancy, as Covid-19 vaccines have not yet been tested in pregnancy, routine vaccination during pregnancy is not recommended.
There is also potential for liability for disability discrimination, as some disabilities make vaccination difficult or dangerous.
Finally, the ingredients or processes used in developing and testing a vaccine may give rise to objections on religious grounds. Some non-religious beliefs are also protected and in some circumstances, this could include anti-vaccination beliefs.
Employers may have a defence to certain acts of indirect discrimination if the discriminatory requirement can be justified. It must be a proportionate means of achieving a legitimate aim. Whether an employer’s aims are legitimate, or a vaccination requirement is a proportionate way to achieve those aims, is a matter for the tribunals and courts to decide.
Human rights legislation is also relevant, as it protects (among other things) individuals’ physical integrity. Whilst purely private employers are not bound directly by human rights legislation, as public authorities, the employment tribunals and courts must interpret laws in a way which is compatible with human rights. The first decisions in this area will be interesting.
Ignoring the legalities, mandatory vaccination is not necessarily the answer for employers. Vaccinated people are not exempt from self-isolation requirements and may still transmit the virus to others. The longevity of the protection offered is unclear and vaccines are not 100% effective. Private vaccinations are not readily available, and for many people, vaccination is not imminent.
In light of this, mandatory vaccinations appear more of a knee-jerk reaction and lead employers into uncharted waters from a legal perspective. As such, employers may prefer to stop short of mandatory vaccination policies and instead focus on encouraging and facilitating voluntary vaccination.