ExEcutivE REPORt No jab, no job…
While politicians disagree about the use of so-called ‘Covid Passports’, Adam Bernstein considers the legal implications for employers…
M
illions in the UK have received at least one dose of a Covid-19 vaccine.
However, vaccination raises a number of legal issues, chief of which are the potential legal implications of employers making vaccinations a requirement of employment.
Justice secretary Robert Buckland indicated, in February, that it may be legal for companies to insist on new staff being vaccinated as a condition of their employment, as long as this was written into their contract.
Requiring employees to be vaccinated According to Mark Stevens, senior associate at law firm VWV, the law currently does not currently permit vaccinations to be mandatory.
“It is true,” he says, “that the government has the power to make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination. But the regulations cannot require a person to undergo mandatory medical treatment which specifically includes vaccination.”
The ACAS view ACAS advises that rather than requiring employees to be vaccinated, employers should encourage staff by, for example, offering paid time off to attend vaccinations. ACAS guidance also suggests that in most circumstances, it is best for employers to support staff to get the vaccine without making it a requirement. However, if an employer feels it important for staff to be vaccinated, ACAS says that it should consult with them. And where further steps are necessary, this should be recorded in writing in a policy.
Employee discipline and dismissals A natural question to ask is, very simply, can an employee be disciplined on the basis that the request to have a vaccine amounts to a
reasonable management instruction? The answer, says, Stevens is “yes – and ACAS guidance supports this, but it indicates that the employer should be mindful of potential discrimination claims; whether it is a contractual requirement of the employee; and/or whether the vaccination is necessary for the employee to carry out their job.”
He adds that “it is also possible that an employee could be dismissed for not having had the vaccine. But an employee could resign in response to a requirement that they are vaccinated.” On these points he cautions that depending on the employee’s length of service, “the decision to impose mandatory vaccinations could lead to unfair dismissal claims or constructive dismissal claims from those employees who resign.”
in place. In particular, employers may look to make having the Covid-19 vaccine a requirement of the job. But, warns Stevens, “this raises significant legal risks, however; a requirement for employees or job applicants to be vaccinated is likely to put individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic. This could lead to indirect discrimination claims.” For the record, indirect discrimination may arise on a number of grounds. Namely age, disability, sex, pregnancy or maternity, race, religion or belief.
The saving grace for employers, says Stevens, is that “discriminatory treatment can be justified on the ground that it was a proportionate means of achieving a legitimate aim.”
Could the refusal to take the vaccine give the employer a potentially fair reason to dismiss? This, says Stevens, will depend on the individual employee’s circumstances and their reason(s). “An employer can, subject to following a fair procedure, dismiss an employee who fails or refuses to comply with a reasonable management request.” But is requiring an employee to take the Covid-19 vaccine reasonable? This, says Stevens, depends on the nature of the employer’s business and customers – as he puts it, “what is a reasonable instruction in the context of a medical setting may well be different in the context of an office or retail environment.”
Requiring a job candidate to be vaccinated To some it appears easier to impose terms on a job candidate since there’s no contract
Declining the vaccine for personal reasons Individuals may argue that a requirement that they receive the vaccine in order to continue to work infringes their philosophical belief. But as Stevens explains “the Employment Tribunal would need to consider whether the employee’s views of the vaccine, or vaccines in general, is capable of protection.” He points out that this has not been tested in an Employment Tribunal.
Conclusion Making vaccinations mandatory for employees carries risks and should not be done without care and legal advice. It may be better, especially at present where vaccinations are not available to all, to simply encourage and facilitate the vaccination of employees to avoid giving rise to claims for discrimination, or unfair or constructive dismissal.
One thing is certain – acting in haste may lead an employer to repent at leisure. n
Super-Deduction! Stay tuned as Adam B returns with massive news about tax relief for qualifying plant and machinery investments.
12 Executive Hire News - May 2021
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