19 February 2021|
Can an employer force their employees to take the COVID-19 vaccine in order to be able to attend the workplace?
This article will consider whether employers can impose a COVID-19 vaccination requirement on their employees in order for them to be able to attend the workplace. Both jobs in which attendance of the workplace is necessary (e.g. retail), and ones for which working from home is entirely possible (e.g. office jobs), will be explored.
The first question to be addressed is whether employers can force their employees to take the COVID-19 vaccine, and secondly, whether they should.
Can employers force their employees to take the vaccine?
Technically it may be legally possible for employers to require their employees to take the COVID-19 vaccine before being able to attend the workplace. But this is only true in limited circumstances.
Employers may be able to introduce such a requirement by amending employee contracts to include a ‘no jab, no job’ clause – a route that certain organisations, such as Pimlico Plumbers, have expressed public support for.
Where employee contracts have a unilateral variation clause, a COVID-19 vaccination requirement could be added in without the employer having to consult with their employees, subject to any issue of overriding custom and practice which has built up over the years.
However, unilateral variation clauses are rare and where an employee contract does not have one, amendments require the consent of employees, or provision of notice to terminate the current contract, to be replaced with a new one that would contain the relevant clause. If an employer receives this consent, they can make the amendment. However, were an employer to go ahead without employee consent, or if the employee would not agree to a new contract, they could face constructive unfair dismissal claims, as explored below.
This consent requirement does not apply to the contracts of new employees. Employers could thus include a COVID-19 vaccination requirement within the contracts of new employees. However, this route still poses the risk of discriminations claims, as explored in full below.
Should employers do this?
Even though it is technically possible in limited circumstances for employers to require their employees to take the COVID-19 vaccine in order to be able to attend the workplace, this may be a risky course of action. This is due to the possibility of employers facing legal claims if they were to impose such a requirement on employees. The different types of potential claim are outlined below.
Claims such as this will only likely arise in circumstances where it is necessary for an employee to attend the usual workplace to perform their work duties – for example, if they work in a retail shop and so cannot work from home. Due to this necessity, an employer may wish to require their employees to get vaccinated and may decide to dismiss those who do not comply.
If an employer were to take this course of action, they could face unfair dismissal claims. Such a claim is only possible where an employee has at least two years’ qualifying service, subject to limited exceptions (which include discrimination, on which see further below)
Were an employee to bring such a claim, an Employment Tribunal would have to decide whether their dismissal was reasonable or not. There are a number of factors to bear in mind that may lead the ET to find such a dismissal to be unreasonable:
(i) The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations – by analogy, it may therefore be difficult for an employer to successfully argue that their dismissal of an employee who refused their instruction to take the vaccine was reasonable;
(ii) The Prime Minister has said that the UK will not force anyone to take the vaccine;
(iii) Requiring someone to get vaccinated may be in breach of Article 8 (right to private life) of the ECHR, as made enforceable in UK courts by the Human Rights Act 1998 – this could be relevant in an ET case because the Tribunal is a public body, as may be the relevant employer.
The specific conditions of a particular workplace will of course also be relevant when assessing the reasonableness of a dismissal. For example, employers within the healthcare sector whose employees cannot work from home may be able to give a reasonable instruction to their employees to take the vaccine as not doing so could put vulnerable people at risk. Any dismissal may, therefore, be fair. The key question will almost always be: what alternative was there to a dismissal, and was it an alternative that would work for the employee and the employer?
Constructive Unfair Dismissal
As outlined above, employers could attempt to amend employee contracts (or impose new contracts) to include a COVID-19 vaccination requirement. However, if an employee did not consent to this imposition, they could resign and then make a claim for constructive unfair dismissal. The issues raised in the previous section of this advice would then become relevant.
It should be noted that constructive unfair dismissal claims only arise where a fundamental breach of contract has occurred. Whether a breach is fundamental will depend on all the circumstances. For example, were an employer who ran a care home to insert a COVID-19 vaccination requirement into its employee contract, this may not be considered a fundamental breach given that physical attendance of the workplace is necessary with this role and such employees work with vulnerable people. This key issue goes also to fairness of any constructive dismissal.
Employers may also open themselves up to discrimination claims were they to introduce a COVID-19 vaccination requirement in order for their employees to be able to attend the workplace.
Section 39 of the Equality Act 2010 (“EqA2010”) prohibits employers discriminating against employees or prospective employees. Section 13, EqA2010 prohibits direct discrimination – treating someone differently because of a protected characteristic. Section 15, EqA2010 prohibits discrimination where a disabled person is treated unfavourably because of something arising in consequence of their disability. Section 19, EqA2010 prohibits indirect discrimination – applying a provision, criterion, or practice to a person in a way that causes a disparate impact on them because of a protected characteristic. The protected characteristics are set out at Section 4, EqA2010 and include age, race, and sex, amongst others.
Different scenarios in which discrimination claims may arise can be envisaged.
For example, pregnant women have been advised not to take the Covid-19 vaccine. Thus if a pregnant employee were to refuse an employer’s instruction to take the COVID-19 vaccine and their employer were to dismiss them because of that refusal, the employer may face a claim under section 18, EqA2010 (which prohibits discrimination on grounds of pregnancy and maternity).
In another example, an employee may have a disability that prevents them from getting or causes them to reject the idea of getting the vaccine, such as a severely compromised immune system or a specific form of mental disability. If their employer introduced a COVID-19 vaccination requirement in order for them to be able to attend the workplace, they would likely have to refuse. Were their employer to dismiss them because of this refusal, or otherwise mete out detriment, that employer could face a claim under section 15, EqA2010 as such conduct is likely to amount to unfavourable treatment because of something arising as in consequence of a disability.
Cases of indirect discrimination may also arise. For example, an employee in their twenties with no underlying health conditions may receive the COVID-19 vaccination much later than an older colleague. A “provision, criterion, or practice” requiring employees to get vaccinated in order to be able to attend the workplace may thus be found to be indirectly discriminatory on the grounds of age because it could have a disparate impact on younger employees.
However, it is it important to note that in both section 15 and section 19 discrimination is permissible where it is justified. To prove justification, an employer would have to show that their conduct was “a proportionate means of achieving a legitimate aim.” The aim of preventing the spread of COVID-19 within the workplace is arguably a legitimate one. Whether conduct was proportionate will depend on the circumstances of a particular case. Relevant circumstances could be the type of workplace; the nature of the job (i.e. whether it was public facing); whether returning to work was necessary; and whether alternative COVID-19 safety measures had been explored or deployed, amongst others.
The issue of whether ‘anti-vax’ beliefs fall under the protected characteristic of ‘religion or belief’ may also be tested in future cases.
Although it is technically possible in limited circumstances for an employer to impose a COVID-19 vaccination requirement in order for employees to be able to attend the workplace, taking this course of action may not be advisable because employers may be putting themselves at risk of future legal claims. Further, the nature of this risk is particularly hard to assess given that the relevant legal principles have not yet been tested in the context of COVID-19 vaccinations by the ET.
Employers are thus encouraged to proceed with caution. It would also be worthwhile for employers to consider whether they would be able to mount a defence to potential claims arising from a COVID-19 vaccination requirement, before introducing such a requirement. A defence could be, for example, proving that discrimination was justified, and/or the dismissal was not unfair.
Where an employer was keen for their employees to get vaccinated, a better approach may be to strongly encourage employees to take the COVID-19 vaccine. This could be done by providing employees with a policy document that sets out the benefits of getting vaccinated, addresses ‘myths’ around vaccinations, and outlines company policy on taking time off to get vaccinated.