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A vaccinated workforce – how far can you go?

The NHS is well underway with the biggest vaccination programme in British history, offering light at the end of the tunnel in the fight against COVID-19.

Last week, Pimlico Plumbers – no strangers to employment law controversy following a 2018 Supreme Court case concerning the worker status of some of its plumbers – announced that their contracts would be amended to require workers to be vaccinated against COVID-19. Workers who decide not to be vaccinated will be dealt with on an ominous ‘case-by-case basis’ according to chairman Charlie Mullins.

The main reason for an employer wanting to ensure that its staff are fully vaccinated is likely to centre around health and safety. Employers are under an obligation to ensure a safe place of work for their staff. Whilst employees have some discretion as to their own approach to personal safety – and refusing to receive a COVID-19 vaccine may fall within this – employers may well be concerned about the increased risk of transmission to colleagues or customers if a staff member refuses to be vaccinated. In a similar vein, as roll-out of the vaccine progresses employers may consider it important to customer confidence to know that staff are vaccinated. This is particularly likely to be the case where staff come into direct contact with customers and may even need to enter their home, as with Pimlico Plumbers.

Employers may consider it a reasonable instruction to their staff to receive a vaccination, but they can’t force them to do so in practical terms. So where do employers stand if they are wanting to ensure that their workforce is fully vaccinated? In particular, if an employee refuses to be vaccinated, can their employer dismiss them?

Data protection

A preliminary point to note is that personal data related to an individual’s health – which would generally include details of vaccinations and any related medical history – is special category personal data under the Data Protection Act 2018. The ICO takes the view that explicit consent is generally not an appropriate processing condition for special category data in an employer-employee relationship, and employers should ensure that they are satisfied that they may rely upon one of the other processing conditions which apply to special category data.

Employers seeking to obtain information relating to employees’ health should therefore ensure that their data protection policies and privacy notices are up to date, and that personal data is collected and processed in accordance with these documents and data protection legislation.

Discrimination

From an employment law perspective, the starting point is to consider why an employee may refuse vaccination. Certain groups have been advised not to be vaccinated for the time being – including those with severe allergies and pregnant women. Others may decline the vaccination on religious grounds – in some cases unless the full list of ingredients and processes used to develop the vaccine can be clarified. A rule where employees are dismissed or otherwise punished for not being vaccinated could therefore give rise to indirect discrimination arguments under the Equality Act 2010, for example on the grounds of disability or religious belief.

There have been some interesting cases in recent years on whether certain philosophical beliefs qualify for protection under the Equality Act 2010 – most notably regarding ethical vegans (yes) and those who believe that individuals have an inherent human right to own the copyright of their own creative work (no). Whilst the courts haven’t yet considered whether the ‘anti-vax’ movement is capable of constituting a philosophical belief for Equality Act purposes, the general consensus amongst practitioners is that such a belief is unlikely to be protected.

Discrimination claims don’t require an employee to have any length of continuous employment, or even to be employed at all in some circumstances – an individual could bring a discrimination claim if they are refused employment on the grounds of refusing to be vaccinated. Similarly workers or even potentially contractors could look to bring a discrimination claim if they are not offered work as a result of their decision not to be vaccinated.

If an employee can establish that an employer’s actions are in principle indirectly discriminatory on the basis that it puts them and others sharing their protected characteristic at a particular disadvantage, their employer must show that their actions are objectively justified as a proportionate means of achieving a legitimate aim in order to successfully defend a claim. This would involve a consideration of the surrounding factors, including those discussed below. Whilst taking steps short of dismissal (for example placing the employee on administrative duties) could still give rise to an indirect discrimination claim, such action will be easier for an employer to objectively justify.

Unfair dismissal

Even where an employee’s refusal doesn’t fall within the scope of the Equality Act 2010, they will still have protection against being unfairly dismissed where they have at least two years’ continuous service.

An employer who dismisses an employee for refusing to be vaccinated is likely to be able to argue that the dismissal falls within the potentially fair ‘some other substantial reason’ permitted under section 98(1)(b) of the Employment Rights Act 1996. A Tribunal would then decide whether it was fair for the employer to treat the employee’s refusal as a substantial reason for dismissal, taking into account all of the circumstances including the employer’s resources.

The typical factors which a Tribunal would be expected to take into consideration would include:

  • The reason for the employee’s refusal to be vaccinated;
  • The nature of the employer’s business;
  • The nature of the employee’s role, and in particular whether it involves face-to-face interaction with colleagues and the community;
  • Whether it would be reasonable to amend the employee’s role to remove the requirement for face-to-face contact;
  • Whether it would be possibly to re-deploy the employee into another role;
  • Whether there is any evidence of third party pressure for the employer to ensure that its workforce is vaccinated, for example from industry regulators or customers; and
  • Whether the nature of the employee’s refusal to be vaccinated is temporary or permanent.

This is not an exhaustive list of factors, and a Tribunal will take into account any matters which it considers to be relevant.

Employers may also encounter a scenario where an employee is expressing anti-vaccination views which they feel are incompatible with the nature of their organisation, particularly if the employer is an NHS body or care provider. This could well justify disciplinary action and potentially dismissal, particularly where these views are being expressed on a public platform and in a way which is designed to persuade others not to be vaccinated. However, employers should avoid conflating a refusal to be vaccinated with publicly expressing negative views about vaccination.

Conclusion

Before employers find themselves considering what action they may be able to take if an employee refuses to be vaccinated, there are a few things that they should consider.

Firstly, employers may consider it helpful to encourage staff to be vaccinated by, for example, promoting the benefits of being vaccinated and telling staff that they will be given paid time off to attend vaccination appointments – although in reality it seems unlikely that this will change the minds of employees who refuse to be vaccinated for the reasons mentioned above.

Secondly, employers must decide whether it is appropriate for them to collect information on whether their employees have been vaccinated, and any related personal information which may be relevant.

If employers do find themselves in a position where they are considering disciplinary action or even dismissal as a result of a refusal to be vaccinated, this is an untested area of law. However, Mr Mullins’ suggestion that each case should be considered on its own merits is a very good starting point for employers.

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