Mandatory vaccination and testing is a hot topic, particularly among employers who want to know what they can and cannot insist on. The short answer is, it depends.
There are a number of legal and practical implications around testing and vaccination, especially if it is to be mandatory. These include discrimination risks, data protection implications, and employee relations issues. Employers should take legal advice in each area before working with individuals to discuss, and if possible, agree the approach they wish to adopt.
Critics of mandatory vaccination have claimed that individuals are more likely to resist if they are forced have the vaccine as a condition of employment. The recent news that the legal requirement for health staff in England to be double jabbed could be removed, subject to consultation and parliamentary approval, is interesting and may be influenced in part by this scenario. The legal requirement was originally expected to be extended to social care staff on 1 April prior to the UK Government’s last minute U-turn. Nevertheless, the UK Government’s review of its plans has been criticised as coming too late for thousands of workers in the affected sectors who have already lost their jobs because of what has been dubbed an “unrealistic vaccination policy”.
In Scotland, no legal requirement to be vaccinated has been introduced in any sector.
As the UK Government changes tack, guidance from the Employment Tribunal has emerged that may move us in the opposite direction. An employment tribunal in Leeds has held the dismissal in February 2021 of a care home employee who refused vaccination was fair. The dismissal occurred before the legal requirement on care home workers to be vaccinated was introduced but the employer had implemented its own policy on mandatory vaccination. Although not binding, this decision is certainly influential as one of the first of its kind. The tribunal in Leeds was clear that the decision is based entirely on the facts of this particular case and should not be taken as a general rule on dismissal for refusing vaccination. However, this case is a useful insight into the factors which a tribunal might consider when addressing dismissal of an unvaccinated employee including:
- the type of work being carried out (in this case, providing close personal care to vulnerable people);
- reasonable management instructions; and
- unreasonable refusal to be vaccinated where no medial authority or clinical basis is provided for not receiving the vaccine.
The tribunal also noted that although the employee’s right to respect for private and family life was engaged by the employer’s policy on vaccination, the decision to dismiss them was proportionate, taking account of all the factors mentioned.
Given how quickly things seem to be changing, employers may wish to explore alternatives to mandatory measures. Alternatives include strongly encouraging employees to be vaccinated and providing support for those who take time off to be vaccinated.
Employers are obliged under the Health and Safety at Work Act 1974 to take reasonable steps to reduce any workplace risks. This obligation could be used as justification for encouraging uptake of the vaccination or frequent testing among employees to protect themselves and everyone else at the workplace, subsequently reducing workplace risks. Some employers, including high profile organisations such as IKEA and the Morrison’s supermarket chain, are considering or are already restricting sick pay to the statutory entitlement where an unvaccinated employees are required to self-isolate, in a bid to encourage vaccination.
In the United States, offering incentives to encourage vaccination has also been seen as an alternative to mandatory measures. It remains to be seen if this will used in the UK, where the uptake in vaccination is considerably higher.
Whichever approach is taken, adopting a policy allows the employer’s position to be clearly stated to those affected, and applied consistently. Employers considering mandating vaccinations should take advice on the legal implications of this approach and how they will handle refusals in a fair and non-discriminatory way. As is often the case, a consultative approach, working with individuals to understand their concerns and reservations can help avoid relations being damaged in the process.
Our workplace risk and regulation group has a broad range of experience in advising UK and multi-national businesses operating across all sectors, assisting clients with their approach to health and safety.
If you would like further advice on this or another related matter, please contact Kevin Clancy, Gillian Moore or Emma Davidson of our workplace risk and regulation group, or your usual Shepherd and Wedderburn contact.