Pimlico Plumbers hit the headlines last week following the announcement that the company will not be offering jobs to individuals who have not been vaccinated against COVID-19 and will be drafting new employment contracts for its workforce to include a vaccine requirement. Questions have naturally arisen about the legality of such a position.
There is no legal basis for the Government to insist on mandatory vaccinations and similarly, there is no legal basis for employers to insist either. Acas has published guidance on the matter and has advised that employers should support staff in getting the vaccine, but cannot force them to be vaccinated. However, it acknowledges that it may be necessary to make vaccination mandatory where it is necessary for someone to do their job. What must be recognised of course is that an employer cannot compel an employee to get vaccinated, rather it becomes a case of the employer contemplating dismissal if the employee refuses to get vaccinated.
Employers should be aware that if they insist on mandatory vaccinations in their workplace they may be exposed to the following risks:
- Potential personal injury claims if vaccine side effects appear later on and the employee can show that they only took the vaccine to keep their job
- Discrimination claims on grounds of disability where an employee is unable to get the vaccine because of a health condition
- Discrimination claims on grounds of age where younger employees are not yet eligible for the vaccine
- Discrimination claims on grounds of pregnancy if employees who are pregnant don’t want to get vaccinated because of the limited evidence about effect
- Discrimination claims on grounds of religion or belief as some vaccinations have been animal tested on pigs whilst others being researched may contain gelatin from pork
- Potential unfair dismissal claims if employers dismiss employees because they refuse to take a vaccine
To enforce mandatory vaccinations in the workplace for existing employees, employers could follow Pimlico Plumbers’ lead by changing terms of employment of their staff. Changes to individual contracts of employment can be made in three ways: by consent, unilateral variation or dismissal and reengagement. Consent will generally be the first point of call but is not likely to be forthcoming from employees who object to being vaccinated. If contracts were unilaterally varied but the employee still refused to be vaccinated then the employer would have to go through disciplinary proceedings, as it would if someone accepted re-engagement but nevertheless refused to get vaccinated when the time came.
Alternatively, an employer could bypass the contract variation route and just attempt to assert that mandatory vaccination is a reasonable management instruction on the basis that that it is an instruction intended to protect health and safety. A failure to comply with a reasonable management instruction would then turn into a disciplinary matter and potentially dismissal.
So under either option, an employee who refuses vaccination ultimately faces being called to a disciplinary hearing. The reasonableness of dismissal will depend on the setting (for example in social care where the Government has published guidance on the importance of social care staff getting vaccinated), the employer reasons for mandating vaccination, and the individual reasons for refusal.
In view of the risks of imposing a mandatory vaccination, employers may instead want to consider how best to achieve voluntary vaccination within their workforces. Collective consultation with employee or trade union representatives in addition to a sensitive internal conversations may contribute towards voluntary take-up of the vaccine. Likewise, informing staff about the advantages and disadvantages of vaccinations may also contribute towards voluntary take-up of the vaccine and could assist the employer in fulfilling its duty to take reasonable care of the health and safety of its employees and to take reasonable steps to provide a safe workplace and a safe system of work.
Whatever position an employer adopts on vaccination, the COVID-secure measures currently followed should be maintained as until the vast majority of the population are vaccinated, these precautions still remain the best way of protecting staff and the wider population.
For more information on mandatory vaccinations or advice on anything COVID-19 related, please contact a member of the Employment Team.