Employment Law Journal - May 2021
As the government and some employers consider compulsory Covid-19 jabs for certain workers, Lisa Rix examines the risks and benefits of such an approach.
Instructing staff to get the vaccine undoubtedly has the reasonable aim of seeking to ensure a Covid-free and safe workplace. However, this may not be a reasonable or lawful instruction if the means are not reasonable to justify that aim.
There have been many articles written over the last few months about the risks of making the Covid-19 vaccine mandatory, most recommending alternative routes such as encouraging rather than mandating vaccination. But could certain types of employers like care homes and the NHS make vaccines compulsory with far less risk?
The Department of Health and Social Care launched a consultation in mid-April on whether care-home staff should be required to have a Covid-19 vaccine. The Independent has also reported that some NHS trusts are preparing to make vaccination compulsory.
No, at the moment there is no obligation for NHS or care-home staff to get the vaccine (or anyone for that matter). The Public Health (Control of Disease) Act 1984 provides that no individual can be required to undergo medical treatment, including vaccination. The current government guidance is that vaccination is a personal matter for people to decide on.
Employers do have a duty (under the Health and Safety at Work etc Act 1974) to ensure, so far as is reasonably practicable, the health, safety and welfare of all their employees when at work and others who ‘may be affected’ by their business activities. However, in the context of Covid-19, discharging these duties requires measures such as social distancing, cleaning and face masks. It will be difficult for an employer to argue that mass vaccination is necessary to discharge its duty.
Similarly, employees have their own statutory duty to take reasonable care of the health and safety of colleagues and others who may be affected by their acts or omissions at work. They are also under a duty to co-operate with their employer by complying with its health and safety requirements. However, having a vaccination is likely to fall outside the scope of this statutory duty.
Although these points apply equally to all NHS staff, there is some precedent for mandating vaccines for them: doctors are required to have Hepatitis B vaccines to protect patients, for example.
The chief medical officer, Chris Whitty, recently told health staff that they have a ‘professional duty’ to have a Covid-19 vaccine. The British Medical Association (BMA) has agreed that they should be vaccinated unless they have a valid medical reason preventing them from doing so. There is still no obligation on NHS or care-home workers to get the vaccine, but the communication from the top is clearly intended to encourage staff to do so.
There are arguably benefits in mandating vaccination for NHS and care-home workers. They care every day for vulnerable people. Having the vaccine is likely to lessen their chance of contracting Covid-19 and needing to take time off work. There is also growing evidence that not only does the vaccine suppress symptoms but that it probably reduces transmission of Covid-19 too. If that is the case, vaccinating staff would help protect
patients and colleagues.
Arguments can be made that the oldest and most vulnerable people should have taken up the offer of vaccination themselves to be protected rather than relying on carers to get the jab. However, some vulnerable people cannot have the vaccine for medical reasons. Equally, we know that the vaccines are not 100% effective. Having all care-home and NHS staff vaccinated would increase protection in those workplaces.
However, given that none of the vaccines are 100% effective, there are many other safeguarding measures which the government still recommends regardless of vaccination: testing, social distancing, face masks, hygiene measures and so on. As the government has made clear, the vaccine is just part of an overall approach to minimising risk and will not eliminate the virus entirely.
There are various legal risks, which will be higher in certain sectors.
Instructing staff to get the vaccine undoubtedly has the reasonable aim of seeking to ensure a Covid-free and safe workplace. However, this may not be a reasonable or lawful instruction if the means are not reasonable to justify that aim. There is no requirement generally for staff to have one of the vaccines and the government currently recommends alternative safety precautions and testing to allow employees to work during the pandemic.
Therefore, for most jobs (such as office-based jobs and shop workers), if an employer were to give such an instruction, or discipline an employee for not following that instruction, it might breach the implied term of mutual trust and confidence. That breach of contract could lead to employees with sufficient length of service claiming constructive unfair dismissal. Equally, dismissing an employee for not having the vaccine is likely to be unfair (provided the employee has at least two years’ service).
It might be more reasonable for employers to require staff who work in close contact with vulnerable people on a daily basis (such as NHS and care-home workers) to have the vaccine, given the potential benefits discussed above. In those cases, dismissal might fall within the range of reasonable responses, allowing the employer to dismiss the employee fairly, either on conduct grounds or for some other substantial reason.
There are various potential discrimination claims associated with mandating staff vaccination.
Some employees will have medical conditions that may amount to a disability (such as allergies), which mean the vaccine is not appropriate for them.
One example is ethical veganism, which has been held to be a protected belief. None of the vaccines currently being offered in the UK contain any ingredients that have come from animals, such as lactose or gelatine. However, animal-derived materials may have been used in the production process, the vaccines have been tested on animals and future vaccines may contain animal products. Groups such as Animal Aid and PETA have said vegans should get vaccinated but we cannot rule out claims on this or other religion or belief grounds.
Current government advice is that pregnant women should be vaccinated but previously the advice was that they should not be. This change in guidance may lead to some pregnant employees being reluctant to get vaccinated.
The roll-out of the vaccine is largely based on age and so younger people cannot currently get access to the vaccine even if they want to. Equally, recent ONS surveys show that adults aged 16 to 29 years have the highest vaccine hesitancy of all age groups.
There is evidence that there is less uptake of the vaccinations in ethnic minority communities. In terms of the NHS and care-home sector, there might be a higher risk of race discrimination claims than in other sectors due to the relatively high proportion of people from an ethnic minority in those workforces.
Employers can justify indirect discrimination (which arises when they have a blanket policy for all staff) when the policy is a ‘proportionate means of achieving a legitimate aim’. This requires a similar analysis to the one carried out when considering whether an instruction is reasonable: protection of the health of co-workers and others is undoubtedly a legitimate aim but there are likely to be other more proportionate measures. However, such policies might be easier to justify in the NHS and care homes given the more vulnerable people that they are seeking to protect. It is also likely that any policy the government or these employers seek to apply will allow for exceptions for certain protected characteristics. The current Department of Health and Social Care consultation on care home workers envisages an exception for those who can provide evidence of a medical exemption.
Another risk of mandating the vaccine is a breach of data protection law if there is no legal basis for the employer to process information about the employee’s vaccination status. Government guidance on making it safe for employees to return to work currently places no importance on vaccination. Employees might argue that there is no need for employers to know whether they have had the vaccine or not and that they cannot be required to disclose this sensitive medical information. The Information Commissioner’s Office (ICO) guidance on the point is that employers should have a ‘clear and compelling’ reason for collecting such information and should not ask for it ‘just in case’. It is possible that the NHS and care homes have a better chance of justifying the collection of such data due to the vulnerable people they look after. The ICO guidance confirms this. Such employers will certainly have a much stronger justification if the government makes vaccines mandatory for their staff.
Mandating the vaccine could also lead to personal injury claims if any staff have a serious adverse reaction to a vaccine. This might be the case if, for example, an employer’s policy did not contain an exemption for those who have received medical advice not to have the vaccine. This risk will be the same for all employers.
The NHS and care homes are the workplaces which the government and the media are currently focused on, given that the overwhelming majority of Covid-19 fatalities are among the old and those with underlying health conditions. Also, all workers in these sectors have now been offered the chance to have a vaccine, although not all have taken up the opportunity.
However, similar arguments can be made about other industries mandating vaccines. For example, essential workers in supermarkets, public transport and the police all interactPDF accessed 4 May 2021 daily with members of the public. There are also workplaces where social distancing is difficult, such as beauty and hair salons, where safety measures could be bolstered by obligatory vaccination.
Despite this, if there are few vulnerable staff or customers, the level of risk may not justify compulsory vaccination. Such employers would be better following the government’s guidance on working safely during the pandemic, rather than trying to force staff to have the vaccine.
For the NHS and care homes, arguably there are already some justifications which lessen the risks associated with compelling staff to have a Covid-19 vaccine. However, it will be safer to wait and see if the government mandates vaccination. If such rules are implemented, these employers will still need to enforce their policy in a non-discriminatory way and comply with data protection law. Employers in other sectors should follow the government’s guidance on who should go to work and focus on making their workplaces Covid-secure. If they are keen for staff to be vaccinated, they should consider the less risky options of offering incentives (such as bonuses), allowing staff paid time off to get vaccinated, offering general encouragement and sharing information about the vaccine.
Employers who are not deterred by the potential consequences highlighted above, and want to push ahead with mandating staff vaccination, should:
Although mandatory vaccinations for NHS and care workers carry less legal risk, most employers will want to consider alternative routes to encourage staff take-up of the vaccine.
Plese contact Lisa Rix if you have any questions about this article.