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No Jab, No Job: Is it Lawful for Employers To Require Employees To Have A COVID Vaccination?

19th January 2021

Pimlico Plumbers CEO, Charlie Mullins, has announced plans to introduce contractual requirements on all staff to have a COVID vaccine if they are to work for the London plumbing company. If and when the vaccine becomes commercially available or available to a wider age group than currently under the NHS for free, many employers may consider following suit, but should they? After all, not every business has the means to defend employment claims and challenge decisions all the way to the Supreme Court.

In this article, we consider some of the legal issues that could arise from introducing a vaccination requirement.

Introducing a contractual requirement

For existing employees, this will require a change to their terms and conditions of employment. Employers should seek legal advice on the best way to implement such amendments. In general, any amendment to an employee’s terms and conditions of employment will require the employee’s agreement, which should be obtained in writing. There should also be adequate consideration in return for the contractual variation. Some employees may not be willing to agree because they do not want the vaccine (for various reasons), or because they do not agree that their employer should be able to force them to undergo a medical procedure. Will consent really be freely given if it’s obtained under the threat of losing one’s job if an employee doesn’t agree to have the vaccination during a global pandemic and the worst post war time recession the world has faced, when the ability to mitigate one’s loss will be adversely affected, particularly if other cautious employers apply the same pre-condition to employment or continuing employment. Employers that decide to unilaterally force a change to employees’ contracts could face claims for constructive dismissal or unfair dismissal.

It may be easier to introduce a vaccination requirement for new employees joining the business. However, as pre-employment medical questionnaires cannot be issued until after an employment offer has been made to a successful job candidate, if an offer is subsequently withdrawn because the successful candidate is not already or does not wish to be vaccinated, this could give rise to claims for discrimination under the Equality Act 2010. For example, an employee that is pregnant, or planning to get pregnant, may refuse the vaccination on the basis that it is not recommended in these circumstances. A refusal to employ this candidate could amount to pregnancy and/or sex discrimination.

Disciplining or dismissing an employee for refusing to have a COVID vaccination

Merely having a contractual provision or policy requiring an employee to have a COVID vaccination will not protect an employer from claims if they decide to discipline or dismiss an employee for refusing to have a COVID vaccination.

Whist employers could try to argue that it’s a reasonable management instruction, as employers are trying to safeguard the health, safety and wellbeing of their staff and customers/clients, employers should bear in mind that the government has not passed any legislation making COVID-19 vaccinations compulsory and as things currently stand, the Public Health (Control of Disease) Act 1984 states that members of the public cannot (legally) be forced to undergo mandatory medical treatment, including vaccinations.

ACAS guidance on Working Safely during Coronavirus states that employers should consider whether the vaccine is necessary for someone to do their job, for example, where travel abroad is essential to the role and vaccination is a prerequisite for travel. In such circumstances, a refusal by an employee could be unreasonable and disciplinary action or dismissal may be warranted.

Where vaccination is not necessary for the employee to do their job e.g. in an office environment, the employee’s refusal is unlikely to warrant disciplinary action and any dismissal is likely to result in a claim for unfair dismissal.

Where the employee’s reason for refusal is because of a protected characteristic under the Equality Act 2010 (most notably, disability, race, religion or belief, sex, and pregnancy), the employer could face a claim for discrimination. For example, an employee might refuse vaccination on religious grounds on the basis that the ingredients contain animal products (e.g. pork gelatine – which it should be noted is not actually the case with the COVID vaccine and it is appropriate for Jews and Muslims who only eat Kosher or Halal products) or because of disability-related allergy reasons.

Employers will need to treat each incident on a case by case basis and consider the employee’s reason for refusal carefully.

Withholding discretionary enhanced sick pay

Employers could consider withholding discretionary enhanced sick pay from employees who refuse to have the COVID vaccine without a legitimate reason for refusal (such as due to pregnancy, medical, allergy-related, or religious reasons), if they subsequently become sick with COVID and need time off work to recover.  They would still be entitled to statutory sick pay if they meet the relevant conditions in such circumstances.

Data Protection Considerations

If an employer is going to keep records of employee’s vaccinations, (whether the NHS COVID vaccine record or one which the employer may obtain commercially) they will be processing data relating to the health of their employees. Health data is ‘special category data’ under the UK GDPR and the Data Protection Act 2018 and is held to a higher standard than other personal data. The employer should consider whether it is necessary to keep records of vaccinations and whether the reason for processing falls within one or more of the permitted reasons in Article 9 of the UK GDPR. If it does not, then the processing will not be permitted.

In addition, employers should ensure that the data is kept and processed securely, that employees are informed of the reasons for processing, who will have access to it, what decisions will be made using the data and how long the data will be kept.

Overall, our view is that employers should encourage employees to take up the NHS vaccination and can refer cautious employees to trusted independently verified medical sources of information about the vaccination, such as the NHS and Gov.UK websites to counter the fake news and conspiracy theories circulating on social media by anti-vaxxers. Employers can, if they so wish, offer COVID vaccinations privately once they become commercially available, much like some employers currently offer voluntary flu vaccinations privately in the workplace. However, employers should not unduly pressure staff to have the vaccine and should seek legal advice before implementing any mandatory requirement on a prospective candidate or employee or if considering disciplinary action or dismissal against an employee that refuses vaccination.

Authors: Michelle Chance is an Employment Partner and Choy Lau is a Senior Associate at leading city law firm, Rosenblatt Limited.