Covid vaccinations and the workplace

Just as we thought that we might be on the home straight in the Covid pandemic, along comes a new variant of concern, the Omicron variant, reportedly more easily transmitted than previous variants. Time will tell how significant this turns out to be, but the Government advisers are clearly concerned enough that they have persuaded the Government to reintroduce some restrictions.

Many employers have been trying to get back to some form of normality for some time, and many have started at least partial returns to the workplace. One issue which we have been consulted on many times is to what extent employers can require their employees to be fully vaccinated, and whether dismissing employees who are not would be unfair.

Mandatory vaccination?

Compulsory vaccinations have already been introduced for the vast majority of people working in care homes, and that has led to a number of issues. Among care home staff we have seen a significant number of employees who have refused to get vaccinated, or who have claimed to be exempt on medical grounds, but who are not willing to confirm this with the NHS Covid Pass. In these circumstances, it is probably going to be fair to dismiss employees who refuse to get vaccinated, or to confirm their vaccination status or medical exemption, as to continue to employ them would be likely to be unlawful. That said, employers should still act cautiously and follow a fair procedure, including considering whether the employee can be redeployed to another role which does not require vaccination under the legislation, and consulting with them to ensure they understand the consequences of their decision. It seems likely that the statutory requirement will be extended to wider healthcare staff, including most NHS staff, in 2022.

Vaccination outside of the care sector

What is the position for employers outside the care sector? The guidelines (see our previous article here) say that employers should encourage employees to be vaccinated, and if that works, obviously that is the end of the matter. But what does an employer do about staff who either refuse to get vaccinated, or refuse to tell the employer whether they have been vaccinated or not? The answer, unfortunately, is not simple or certain, at least until it has been tested in the courts. If the employer simply dismisses the staff member, then subject to them having 2 years’ employment, the employee is likely to bring an unfair  dismissal claim.

Legislation does provide that dismissals can potentially be fair, where the reason for dismissal is one of the reasons permitted in the Employment Rights Act 1996: conduct, capability, redundancy, breach of a statutory enactment, or some other reason justifying dismissal (SOSR). The only potentially fair reason for dismissal which an employer could use in this situation (i.e. where the law does not require staff to be vaccinated) is SOSR, i.e. that to continue to employ unvaccinated people would put other employees/clients at increased risk of contracting Covid.

This argument has not yet been tested in the Tribunals, but even if the principle that requiring people to be vaccinated is found to be an acceptable reason for dismissal, employers will still be expected to have gone through a consultation exercise with the affected employees, and to have explored whether there was any other way of dealing with the situation, for example allowing non-vaccinated people to work from home to avoid them mixing with other employees/clients. Clearly this will not work in every workplace or in every job, but is something which employers will be expected to have considered.

Is a full vaccination requirement discriminatory?

Another factor which employers will need to consider is whether a requirement for employees to be fully vaccinated may be discriminatory. The protection against unlawful discrimination applies to all employees irrespective of length of service and also extends to job applicants. The Equality Act 2010 makes it unlawful to treat someone less favourably because of their religion or philosophical belief. This latter provision may make the requirement to be vaccinated a discriminatory act. It is by no means certain that a belief that vaccines are harmful to public health (which is an argument used by some) would amount to a philosophical belief, but this has not yet been tested in the Tribunals. If it does amount to a philosophical belief, then in order to avoid a finding of discrimination, the employer will have to show that the requirement was a proportionate means of achieving a legitimate non-discriminatory objective.

This is a very difficult area for employers, and whatever they do there is likely to be some risk. Until it is clearer what position the courts and Tribunals will take on these issues, employers should act with caution and seek advice on their specific situation.