“No jab, no job” – the ethical dilemma of forcing staff to have the Covid vaccine.
The question of whether or not employers can force staff to have the Covid vaccine has been a commonly asked one since the rollout started.
Certainly, the news that three effective Covid-19 vaccinations have been developed and approved for use in the UK has come as a relief to business leaders.
Finally, there is a glimmer of hope that normal operations could soon resume and employers will be able to safely bring more staff back into their workplaces!!
This is, I believe, why many business leaders are keen to encourage employees to get vaccinated when they’re offered the opportunity and why the question keeps arising.
This article is a long and quite heavy one but stick with me! I’ll be covering:
- What UK law says
- What health and safety law says
- Is it ethical?
- Adopting a Covid vaccine policy
- Refusal to get vaccinated and potential claims for discrimination
- Dealing with refusers
- Making the vaccine mandatory in the workplace
- Dismissal for refusal to be vaccinated
- Future considerations
- Encouraging staff to have the vaccine
What does the law say about enforcing the Covid vaccine?
Firstly, let’s deal with the boring (but important) legal stuff.
In the UK there are no legal stipulations that could force individuals to become vaccinated. 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.
If any government of the UK were to insist on compulsory vaccination, it could result in objections on the grounds of individual liberty and human rights (article 8 of the European Convention on Human Rights, protects people from being interfered with physically or psychologically and includes mandatory vaccinations).
So that pretty much answers the question on whether employers can force staff to have the Covid vaccine, but let’s explore this a little more because as usual, there are some conflicts between laws!
Covid vaccination in the workplace – health and safety law
The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks. It is this duty that may give employers justification for encouraging their employees to be vaccinated, in order to protect themselves and everyone else at the workplace.
Remember also that COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (AKA RIDDOR), so this could potentially strengthen an employers’ encouragement of employees to agree to vaccination.
From the conversations I’ve been having with friends, family and clients I believe that most people will welcome the opportunity to be vaccinated against COVID-19 but there will be a minority who will be reluctant or refuse to have the vaccine.
The reasons could be many and varied, including individuals who:
- Can’t have the vaccine (e.g. on medical grounds)
- Those who can have the vaccine but refuse (e.g. on religious or spiritual grounds)
- Those who can have it but have concerns and are uncertain (e.g. due to a fear of vaccinations or needles generally).
Engagement by business leaders through good communication will help employees make informed decisions regarding their vaccination. Explaining and encouraging employees with impartial, factual information will keep them informed about the workplace impact and risks of COVID-19.
Whilst we’re on the subject, I’d advise that companies keep copies of any communications they’ve sent out to encourage vaccination, just in case any pro-vaccine employees complain that the employer has taken inadequate steps to comply with their health and safety duties.
Is it ethical for employers to request that staff are vaccinated before they return to the office?
Clearly, forcing staff to have the Covid vaccine is a controversial one.
Behaving ethically generally involves difficult choices and dealing with moral dilemmas. Employers will need to weigh up the requirement to keep all employees, customers and the wider community safe (in line with their general duty of care) with the need to respect the wishes and liberties of individuals.
Whatever the employer’s decision, they need to think about how they will justify it and the impact it will have on all concerned. And, of course, whether there are further legal considerations in terms of potential claims of discrimination to be taken into account which I’ll cover below.
Adopting a vaccination policy
If an employer chooses to take a stand on encouraging staff to have the Covid vaccine, I’d recommend that they develop a policy on vaccination (or update an existing policy if there’s one in place for e.g. hepatitis vaccinations in the care industry).
Employers going down this path should clearly outline their stance on vaccination and explain the expectations on managers and employees.
Vaccination policies should take into account the legal aspects, for example, with respect to discrimination claims, as well as providing information on data protection and health and safety duties. If we look again at employment law, a policy can potentially be justified as a means of achieving the legitimate aim of staff health and safety. Vaccination policies may be a proportionate way of achieving those aims. However, this will depend upon the way in which they are managed and the impact on the individual employee.
A vaccination policy could be part of a company’s overall COVID-19 secure plan towards maximising the number of employees who can attend work safely. However, it should be one element of this plan and not a substitute for other measures. Refer to your risk assessments and get further advice from a health and safety specialist.
In a nutshell, proceed with caution!
Refusal to get vaccinated and potential claims for discrimination
Employees may refuse vaccines for many reasons, ranging from concerns about potential allergies, a phobia of needles or misplaced concerns about fertility. There is also misinformation around vaccines including questions around the rigorousness of the approval process, which could lead to concerns or refusal.
Whatever reason an employee has for refusing to be vaccinated, employers must consider each case individually. Some of the concerns people may have could reflect deeply held views or feelings of apprehension and these are taking place against a backdrop of heightened levels of fear and anxiety due to the pandemic and the challenging circumstances many are experiencing.
Vaccine refusal due to philosophical belief
Some employees have an anti-vaccination belief. This could theoretically amount to a protected philosophical belief under the Equality Act 2010. For example, an employee who believes in natural medicine only could try to establish that this belief is genuinely held and worthy of respect, which could lead to compensation at a tribunal.
An employer however, could argue that an anti-vax belief is not a philosophical belief protected by the Equality Act because there is an inadequately coherent belief system behind it. Whilst there are legal subtleties surrounding whether the ‘anti-vax’ movement would gain Equality Act protection there is at the very least a risk that this type of belief could be protected and lead to compensation at a tribunal.
Similar claims may arise from vegans who may also be protected under the Equality Act if a vaccine includes animal products. Just for the record, the COVID-19 vaccines do not contain any products derived from animals so this should be made clear to employees.
Ultimately, employers should discuss someone’s concerns and objections and take them seriously, by listening to their reasons for refusing vaccination and, where necessary, exploring other COVID-19 secure ways of working.
Vaccine refusal due to religious belief
Some employees may refuse to be vaccinated on the basis of their religious beliefs.
Remember that religious beliefs do not have to be shared by everybody within that religion. Therefore, an anti- vaccination belief could be held by some people of a certain faith and potentially be protected, even though others of the same faith are in favour of vaccination.
Although pork gelatine is historically used in some vaccines, which could lead to a refusal on the grounds of religious belief for people of Muslim, Jewish or Hindu faith, the COVID-19 vaccines being used in the UK do not use pork gelatine. In fact, the UK COVID-19 vaccine rollout is endorsed by the British Islamic Medical Association, Hindu Council UK, and the Board of Deputies of British Jews. Full information on the ingredients of the Oxford-Astrazeneca, Pfizer-BioNTech and Moderna vaccines can be found on their websites and patient information leaflets. This information can be used to discuss any objections based on religious beliefs.
Employers will have to take each case on its merits and listen to an employee’s reasons for refusing vaccination and if necessary explore other COVID-19 secure ways of working.
Options for dealing with vaccine refusers
If staff refuse to get the vaccination, employers should seriously consider the employee’s reasons and any concerns they may have and look to implement alternative solutions. This could include continued working from home if possible, social distancing within the workplace, the use of PPE and so on.
Ultimately, if their return to the workplace could pose a threat to the wider workforce’s health and safety, employers may consider not allowing unvaccinated employees to return to the workplace. Just remember that this may give rise to a legal risk for the employer. Indirectly pressurising employees to be vaccinated (such as with disciplinary action) is likely to result in claims.
In some sectors though, such as health and care work, vaccination is of greater importance so employers may consider a dismissal process as a last resort, especially if they are unable to find alternative work for individuals who refuse vaccination and other efforts at encouraging employees to be vaccinated are unsuccessful.
Getting legal and/or HR advice on these issues is absolutely imperative!
Making Covid vaccine mandatory in the workplace
There have already been employers who have made the decision to make vaccination mandatory in the workplace. Some of which have received bad press; Pimlico being one where they have attempted to introduce a “no jab, no job” policy.
As I’ve already discussed, vaccination requires an individual’s informed and voluntary consent and cannot be forced. If employees refuse vaccination the employer may need to consider other steps that can be taken to protect them. An employer could consider potential disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care) where an employees’ refusal has serious consequences but this approach is not without risk. Any employers considering this approach should seek specific legal advice.
Employment contracts and Covid vaccine clauses
Some employers might include clauses related to vaccination in employment contracts for any new employees. Existing employees can be asked to agree to a compulsory vaccination clause as a variation to their contracts of employment.
Keep in mind though, that even if employees agree to vaccination in their original employment contract or a subsequent variation of it, employers still cannot physically enforce this as an individual’s informed consent is always required for any medical intervention.
Employers enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal. It is easier to introduce a vaccination clause into new starters’ contracts, although it would be a good idea to discuss this with any potential recruits.
Dismissal for refusal to be vaccinated
Every employment contract contains an implied term that employees must follow their employer’s reasonable instructions. Failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal. Whether an instruction to have a COVID-19 vaccine is reasonable has not been tested in the tribunals and courts. As there is at least a risk of unfair dismissal, discrimination and other claims, employers should consider their position very carefully before moving towards disciplinary processes and dismissal.
An employer can only attempt to win an unfair dismissal claim if they can show that the employee unreasonably refused to be vaccinated. Each case will be considered on its own facts, including consideration of other ways in which the employee could continue to work safely without vaccination. If an employee’s vaccine refusal is related to a disability or a religious or philosophical belief the employee may have a direct or indirect discrimination claim as well as a constructive unfair dismissal, breach of trust and confidence and other claims.
Being a test case as one of the first employers to dismiss on the grounds of vaccine refusal is likely to be time consuming and potentially rather expensive.
Future considerations
Employers may wish to begin planning for a return to the workplace (for those employees who have been working from home) and how that may look but I’d recommend that we all wait for government guidance before implementing any of these plans.
Keep in mind that Professor Jonathan Van-Tam’s warned recently that people who have received their vaccination must still obey social-distancing rules.
Employers can ask if employees have or have not been vaccinated but should have a good reason for needing to know, for example the safety of other employees. This information is sensitive personal health data and employers will need to comply with the data protection rules. It would be worth re-visiting your data protection policies and privacy statements to include this sort of information. Employees who have been vaccinated could show their vaccination record card as proof but as yet there are no plans for a national vaccine passport or certificate.
In the future employers may be prepared to privately purchase and offer COVID-19 vaccination as a workplace benefit, similar to flu vaccinations. If the cost is under £50, this will not be a taxable benefit. However, Health Secretary Matt Hancock suggested that an annual COVID-19 jab may be offered by the NHS if the UK decides to roll out a dual vaccination programme with yearly jabs to protect against both flu and coronavirus.
Ways to encourage Covid vaccination in the workplace
Perhaps the best course of action would be for employers to reassure rather than overtly persuade. Leading by example and engaging with staff about safety, outlining the benefits of vaccination with the latest information and deliver this in a culturally sensitive way. Here are some ideas;
- Offer employees consistent, accessible and factual safety data which promotes the genuine achievement of science in producing an effective vaccine (use NHS or government sites)
- Ensure line managers are aware of policy and company approach and are consistent in their message
- Consider counteracting misinformation and conspiracy theory spread through social media
- Promote the merits of vaccines in general, and the COVID vaccines specifically
At this stage it is clear there is no right answer to the question around and forcing employees to have vaccinations. Employers will need to carefully weigh up the pros and cons and listen to employees’ views over the coming months.
Until everyone has been vaccinated and the effects monitored, other measures including social distancing must continue for the foreseeable future.
