Just a little scratch?
Recent reports confirm that over half of the adult population in England has now received its first COVID-19 vaccination. This, along with the February 2021 four step roadmap drawn up to cautiously ease the country out of lockdown, has seen many begin to feel positive about the future and an eventual return to “normal”. Employment lawyer Lucy Flynn takes a closer look at whether or not a business can compel its workforce to have the vaccination and implement a “no jab, no job” policy.
The government has confirmed that, before moving on to the next step in the roadmap, the success of each previous step will be assessed not on dates but on data and by using the following tests:
– The vaccine deployment programme continuing successfully
– Evidence showing vaccines are sufficiently effective in reducing hospitalisations and deaths in those vaccinated
– Infection rates not risking a surge in hospitalisations which would put unsustainable pressure on the NHS
– The government’s assessment of the risks not fundamentally changing by new variants of concern of the virus
As such, what is very clear is that the easing of restrictions is heavily dependent upon the success of the country’s vaccination programme.
The current advice is that you may only leave your home for work unless you cannot reasonably work from home. However, assuming that the four tests above are satisfied, 12 April 2021 will see the re-opening of non-essential retail, personal care premises, public buildings, indoor leisure facilities, most outdoor attractions and settings, self-contained accommodation such as campsites and holiday lets and hospitality venues serving people outside and with this, an influx of people returning to the workplace.
After twelve months of disruption, lost income and ongoing uncertainty, the question of how to balance the protection of staff and customers with the desire to ensure a successful re-opening is paramount.
At the start of the third lockdown in England, and only a few months after coming under fire for dismissing employees who refused to return to work after furlough, the Chief Executive of Pimlico Plumbers announced that he was intending to make it mandatory for all new starters at the company to be vaccinated against COVID-19 – followed by a hasty retraction.
So, can a business compel its workforce to have the vaccination and implement a “no jab, no job” policy?
In most cases, UK citizens cannot be forced to undergo mandatory medical treatment, and this would include submitting to a vaccination. The law is very much on the side of the individual and employers considering implementing a policy of mandatory vaccination for its workforce should be aware that:
– Compelling an individual to be vaccinated may be in breach of Article 8 of the European Convention on Human Rights, which protects an individual’s right to respect for private and family life. The concept of ‘private life’ is very broadly interpreted to cover many things, including the right to control who sees and touches an individual’s body and this means that public authorities cannot do things like take a blood sample or vaccinate someone without their permission
– Forcing anyone to receive a vaccine injection without their voluntary consent could also conceivably constitute an unlawful injury and/or be contrary to the Offences against the Person Act 1861, and lead to criminal prosecution
– Individuals with genuinely held religious or philosophical beliefs which prevent them from consenting to being vaccinated will be afforded protection from unfavourable treatment in the workplace arising from such beliefs under the Equality Act 2010.
Given the statutory protection offered to individuals, employers would be well advised to avoid forcing an individual to be vaccinated without their consent.
What about less direct means of ensuring a fully vaccinated workforce?
For example, the insertion of a clause in the employment contract which makes vaccination a condition of ongoing employment, making a refusal to be vaccinated a disciplinary offence or implementing a policy which restricts the duties or pay of individuals who are not vaccinated.
Again, the smart advice would be to proceed with caution.
– Consider carefully the purpose of such a policy – is there a legitimate aim that is trying to be achieved and if so, what is it?
– Consider carefully the reason for any refusal to comply – is it due to a characteristic protected by the Equality Act 2010 such as religious belief or disability?
If an employer proceeds with such a policy, and treats all refusals to comply with potentially unfavourable treatment such as disciplinary action or pay cuts, then an individual objecting due to a protected characteristic may be able to issue a claim in the Employment Tribunal for direct or indirect discrimination and/or resign in protest and claim that they have been constructively unfairly dismissed.
Clearly some organisations can easily identify a legitimate aim in requiring its workforce to be vaccinated – for example, those in the healthcare sector whose aim would be to protect the health and safety of both patients and staff by minimising the risks associated with being infected with COVID-19.
However, the starting point for all organisations should be the government’s stated position, namely that
“taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one.”
As such, in any case where an organisation is considering implementing a policy of vaccination for its workforce, there should be serious consideration to what alternatives to a vaccination could achieve the stated aim – for example PPE or other adjustments such as working from home.
Furthermore, open and transparent consultation with staff on the subject and sharing regular and up to date information about the vaccine would enable all parties to make an informed decision regarding the vaccination and any policy relating to it.