Can an employer require its workforce to get the vaccine?
Despite talk of the vaccine being mandatory in certain sectors such as healthcare, there is currently no legal requirement for anyone to be vaccinated. This means that an employer cannot force an employee to be vaccinated without their consent. It may be possible for an employer to argue that it is a reasonable request to require customer facing staff and those preparing food be vaccinated on health and safety grounds, i.e. this is likely to limit the spread of the virus and put customers and other staff at ease. However, employers should not be hasty in disciplining or dismissing those who refuse. Each case should be considered on its facts. There may be a reason why the vaccine isn’t suitable for an employee, including if they are pregnant or have an immune system disorder.
What employment law issues arise if mandating vaccination?
- Unfair dismissal: an existing employee with over two years’ service may claim that a refusal to provide them with work or prevent them from coming to the workplace if they are not vaccinated amounts to a repudiatory breach of contract, entitling them to resign and claim constructive unfair dismissal.
- Human rights: it may be a breach of the individual’s rights to privacy or freedom of thought, conscience or religion.
- Discrimination: mandatory vaccine requirements could lead to claims of discrimination on various grounds, both by applicants for work as well as employees. Younger workers who have not been offered the vaccine may claim age discrimination if they face dismissal, detriment, or refusal of a job as a result of not having had the vaccine. Others may refuse the vaccine because their religion disapproves of such medical treatment.
- Prohibited health questions: employers are not permitted to ask about an applicant’s health before offering work.
To counter possible allegations of indirect discrimination, a no jab-no job policy must be a means of achieving a legitimate aim, for example, protecting the health and safety of staff and customers. It must also be proportionate, i.e. reasonably necessary, and this will require a consideration of whether there are other, less discriminatory means of protecting staff and customers. Until there is clearer evidence that vaccination prevents or reduces transmission in the workplace, there is some doubt as to whether a vaccine policy will be appropriate and proportionate, particularly if the venue permits access to unvaccinated customers.
Before introducing a policy, hospitality employers should consider these three steps:
1 Risk assessment
Assess the workplace risks to show why COVID-19 vaccination is required. Consider the circumstances of each role rather than the workforce as a whole. Remember that the vaccine does not yet replace the core safety principles of hygiene, isolation and social-distancing. As a first consideration employers should follow the government guidance for making the workplace Covid-secure.
2 Consultation and support
Have a dialogue with employees who are vaccine-hesitant to properly understand the concerns. Ensure employees understand the benefits and purpose of a vaccine policy. Consultation with workplace health and safety representatives or trade unions may be required in some workplaces. Consider permitting paid time-off to staff to attend their vaccine appointments. Provide reassurance about the protection of their personal data.
3 Other protective measures
Remember there may be some who cannot be vaccinated. In addition to mandatory masks, social distancing and hand hygiene, other protective measures to consider include introducing or encouraging regular Covid-19 testing or re-deployment.
Clare Gilroy-Scott is a partner in the employment team at law firm Goodman Derrick LLP