Is a ‘no jab, no job’ policy lawful?
The COVID-19 pandemic has prompted employers across the UK to reassess their health and safety practices to ensure their workplaces are clean and safe for their workforce, customers and visitors. This has resulted in strict hygiene measures being introduced to control the spread of coronavirus within the workplace.
With the widescale roll-out of the COVID vaccination, many employers may now be considering the role of the vaccine in their COVID workplace risk assessment. With figures suggesting the vaccine is helping to bring the number of cases down and to lower COVID hospitalisations, employers may be considering if they can make the COVID vaccination mandatory for their workforce, or if they can take disciplinary action against personnel who refuse to have the COVID vaccine.
Health & safety requirements on employers
Under the provisions of the Health and Safety at Work etc. Act 1974, all employers are under a statutory duty to ensure the health, safety and welfare at work of their employees, as well as the health and safety of other people who might be affected by their business.
In the context of COVID-19, this duty requires employers to take all steps, as far as is reasonably practicable, to help prevent the spread of the virus. This means that an employer must identify any contamination risks to which employees and members of the public may be exposed, and implement appropriate measures to control and minimise these risks.
Typically, this will include addressing key areas of workplace hygiene, including implementing a regular cleaning routine, ensuring frequent hand-washing and sanitising by both staff and visitors, the use of adequate personal protective equipment or social-distancing measures where possible, and promoting good standards of personal hygiene.
But does this duty extend to allowing employers to make the vaccine compulsory for workers?
Can employers force staff to get the vaccine?
The statutory duty to ensure the health and safety of employees and members of the public requires an employer to take all steps “as far as is reasonably practicable”. This does not, however, mean that an employer can force their staff to be vaccinated against COVID-19.
The current position is that only care workers in England are currently subject to mandatory vaccination legislation, which takes effect 11 November 2021.
In the context of jobs in the health and social care sector, the government has argued that mandatory vaccination of staff, or the use of disciplinary sanctions to ensure that staff get vaccinated, is necessary to ensure that patients, care home residents or other service users are not exposed to a risk of contracting coronavirus. It could also be arguable in these circumstances that mandatory vaccination is a proportionate means of achieving a legitimate aim in cases where employees object on protected grounds under the 2010 Act.
However, this approach to mandated vaccination is only likely to apply in high-risk workplaces or job roles where no other reasonable steps to protect vulnerable persons are available, such as amended duties or redeploying the employee to a lower-risk role.
Outside of the care sector, and specficially the amendment to the Health and Social Care Act 2008 imposing the mandatory vaccontation requirement on care workers, there are no statutory provisions which can compel someone to be vaccinated. In fact, there is express provision within the Public Health (Control of Disease) Act 1984, that the measures the government can introduce for the purpose of preventing and protecting against the incidence or spread of infection in England and Wales should not require members of the public to undergo medical treatment, including vaccinations.
The Coronavirus Act 2020 itself does not permit mandatory vaccination, nor have there been any amendments to the 1984 Act. The law in this respect remains unchanged, where to compel an individual to be vaccinated would require new legislation.
At present, according to recent guidance, it seems unlikely that the government will mandate vaccinations moving forward and that vaccinations will remain voluntary, with emphasis on the importance of employers finding other ways to make their workplace safe.
That said, this general stance may well be changed in respect of certain workplaces, such as healthcare settings beyond care homes, where specific provisions may be considered in light of the high-risk nature of the environment and where the statutory duty placed on employers to create a safe working environment is especially pertinent where employees have to come into close contact with the clinically vulnerable as part of their job role.
Can employers make the COVID vaccine a contractual term?
The inclusion of a mandatory vaccination clause within an employee’s contract of employment is theoretically possible. However, asking existing employees to agree to an amendment to their contracts, making it a requirement that they be vaccinated, is fraught with legal risk.
An individual’s informed and voluntary consent is required for any kind of medical intervention, where the implicit threat of losing their job or being subjected to a detriment at work if they don’t sign could be construed as coercion. In most cases – unless vaccination is required as part of an employee’s job role, for example, overseas travel – it is unlikely that any contractual vaccination clause would be enforceable, as there would inevitably be some question mark over whether or not the consent was freely and voluntarily given.
Equally, in respect of any “no jab, no job” policy that employers may be thinking of introducing for new recruits, this could result in claims of unlawful discrimination under the Equality Act 2010 where applicants object to having the vaccine on protected grounds. Such grounds could include age, disability, pregnancy and maternity, or religious and philosophical belief.
In respect of philosophical belief, it is yet to be seen whether the ‘anti-vaccination’ movement will attract protection under the 2010 Act. Certainly, in theory, requiring an individual to act in contravention of a genuinely held belief could amount to indirect discrimination. There is no legislative definition of ‘philosophical belief’, but an individual would need to demonstrate:
- The belief is genuinely held
- The belief is held with sufficient cogency, seriousness, cohesion and importance;
- It is a belief rather than an opinion or viewpoint based on the present state of information;
- The belief must be as to a weighty and substantial aspect of human life and behaviour;
- The belief held is worthy of respect in a democratic society and does not conflict with the fundamental rights of others.
- It is certainly possible that an employee raising a philosophical objection would fail on the issue of whether their belief is acceptable in a democratic society, although this point is yet to be tested before a tribunal.
It is also possible that employers may, in some cases, be able to raise a justification defence to indirect discrimination if it is a proportionate means of achieving a legitimate aim. However, it remains to be seen if forcing employees to have the vaccination would be considered proportionate, given the effectiveness of the vaccine has yet to be steadfastly determined, or whether less ‘drastic’ measures should be relied on instead, such as social distancing, the use of face masks and hand-washing.
Indirect ways to make the vaccine compulsory
In the same way that some employers are using disciplinary measures to manage their new strict hygiene regime in the workplace, in practice it may be that employers begin to indirectly compel staff to get the vaccine through the threat (perceived or otherwise) of disciplinary sanctions. However, employers should again proceed with caution here before introducing any punitive measures.
Under the Equality Act 2010, any differentiation in treatment between those who have or haven’t had the vaccine because of a protected characteristic will be classed as unlawful discrimination. The threat of disciplinary action, including dismissal, if staff refuse vaccination, could therefore be discriminatory where an individual has valid objections.
If an employee resigns in protest on any one of the grounds relating to a protected characteristic under the 2010 Act, this could also lead to a claim for constructive dismissal.
That said, there are some workplace sectors and job roles where employers might be able to argue that the individual in that post needs to be vaccinated for pressing health and safety reasons. In these cases, whether any disciplinary action or dismissal is fair will depend on the facts, including the availability of alternative ways to protect any vulnerable persons.
Can staff lawfully refuse the COVID-19 vaccination?
The COVID-19 vaccination is not a legal mandatory requirement. This means that unless a worker is employed in a sector or job role where there are pressing health and safety reasons to have the vaccine, an employer is unlikely to be able to insist on vaccination, or be able to take lawful action against them for not doing so.
Even where an employer has introduced disciplinary sanctions for anyone refusing to be vaccinated in a high-risk working environment, caution should still be exercised before reaching any decision to dismiss. It is only an employee who unreasonably refuses to be vaccinated that can be fairly dismissed.
This means that the employee must be given an opportunity to state the reasons for their refusal and the employer will be required to give proper consideration as to whether there are any alternatives to dismissal, such as reallocating the employee to a different role.
Given the uncertainty involved as to how the tribunals are likely to approach this issue, expert legal advice should always be sought to minimise the risk of any tribunal claim for either unfair dismissal or unlawful discrimination.
What steps can employers take to encourage vaccination?
Employers will naturally be keen for their staff to benefit from a COVID-19 vaccine to help reduce the risk from the virus and the risk of transmission in the workplace.
As part of their overall workplace risk assessment, it is also important for employers to consider what steps they can take to encourage voluntary uptake when staff become eligible under the government’s vaccination programme. Even though COVID-19 vaccines are not available to be purchased privately, so employers will not be required to consider their own vaccination programme, they will be required to be pro-active in other ways.
The best course of action for employers to take will be to help their staff make informed decisions regarding vaccination. This can be achieved through sharing of impartial and factual information about the importance of vaccination. It could also include paid time off for vaccination appointments.
In addition, there are various other steps an employer can take in controlling the risk of infection, from strict social distancing and hygiene measures, to widespread testing where at all possible. By applying these measures, employers will not only satisfy their statutory duty to ensure the health and safety of employees and members of the public affected by their business, but this is also likely to significantly help reduce the spread of the virus.
DavidsonMorris’ employment lawyers can help with all aspects of workforce management, including adapting to the challenges of the COVID pandemic on employment terms and employee engagement. Working closely with our specialists in HR, we deliver comprehensive advice on the options open to you as an employer and provide practical support through any process to vary contractual terms or to draft new employment documentation adjusted to post-pandemic conditions and requirements. For help and advice with a specific issue, speak to our experts.
Mandatory vaccination at work FAQs
What is the purpose of vaccination in the workplace?
In the context of COVID-19, the purpose of vaccination in the workplace is to control the spread of the virus, ensuring that where remote-working isn’t feasible and staff are working in close proximity to each other, there is a reduced risk of contamination and infection.
Can my employer make me have the coronavirus vaccine?
In most cases, it's unlikely that an employer can force you to have the coronavirus vaccine, where any direct or indirect steps to introduce mandatory vaccination could be construed as unlawful. As the law currently stands, vaccinations are voluntary except for care home workers in England from 11 November 2021.
How can I encourage my employees to get the coronavirus vaccine?
There are various steps that an employer can take to encourage their employees to get the coronavirus vaccine, including sharing impartial and factual information about the importance of protecting themselves and those around them from infection.
Can employers make the coronavirus vaccine mandatory?
Employers may seek to make the coronavirus vaccine mandatory. However, in most cases, it is likely that mandated vaccination in the workplace will be construed as unlawful, especially where an employee objects on the basis of a protected ground, such as age, disability, pregnancy or religion.
Last updated: 1 August 2021