We have had a number of enquiries from clients on this matter and you will have seen that this question has featured in the press over the last week. There are two considerations here:
- Can employers insist their current staff have the jab and, if so, what can they do if anyone refuses?
- Can employers make having the jab a condition of employment for new starters?
The employer’s starting point should be to consider what they want to achieve by introducing such a rule. In a care environment, the aim may be to take extra steps to protect vulnerable residents and the care staff, which on the face of it seems pretty reasonable. In other sectors, however, that may not be quite so obvious – for instance, a tech firm whose staff largely work from home may struggle to explain why such a rule would be reasonable.
Some employers face third-party pressure to have staff vaccinated. For instance, in construction some site owners are starting to make this a condition of letting staff on site. So a supplier to the client may need to insist staff have the vaccine in order to comply with the site requirements, over which they have no control.
If an employee or new recruit refuses to comply, what can an employer do about it? In the case of a new starter, you could withhold the offer of employment. For current staff you may consider it a refusal to comply with a reasonable management request and treat it as gross misconduct, or else consider that their refusal makes it impossible for them to fulfil their contract and terminate employment.
However, all of these steps carry some risk. So the starting point should be to investigate the reason for refusal and document it. Some people may not be able to have the vaccine for health reasons; if you take action against them for failure to comply, that could be considered indirect disability discrimination (assuming their health condition meets the definition of disability). If they are unable to comply because they are too young to have yet been able to have the vaccine, that could amount to indirect age discrimination. You may still be able to justify the steps you take, as an employer is able to successfully defend a claim of indirect discrimination if the action they take (e.g. dismissal or refusal to employ) is “a proportionate means of achieving a legitimate aim” (Section 19 of the Equality Act 2010). That is why it is important to establish your “legitimate aim” at the outset (e.g. to protect vulnerable people in your care). However, in the case of an age discrimination claim it may not be considered proportionate to insist on younger people being vaccinated where that is not possible, and where the alternative may be to have a rule that they become vaccinated as soon as they are offered the vaccine. That is something that could be made a condition of the employment contact for new starters.
If someone refuses to have a vaccine because they are an “anti-vaxxer” who buys into the various conspiracy theories that are circulating on social media, you may be tempted to think there is no risk in taking action against them. You may well be right, but there is the possibility that they may try to claim indirect discrimination on grounds of religion or belief. Once again, however, you could use the defence of trying to achieve a legitimate aim, as set out above. in addition, case law has established that to be protected a belief must satisfy certain criteria, including that it has a level of cogency, seriousness and importance akin to a religious belief and is worthy of respect in a democratic society. I suspect that an anti-vaxxer may struggle to meet those criteria.
Until we have some case law on this, however, all we can do is assess the risk based on the considerations set out above, and hope that an Employment Judge would validate our approach.
Please contact us if you would like to discuss this further, particularly if you are considering introducing rules on vaccination. |
