Vaccinations are currently a huge
talking point and with the NHS and other workers (such as in the care sector)
being required to have it, there is a question in the minds of many individuals
working in other sectors outside of the health sector:
“Can my employer require me to
have a COVID-19 vaccination and prevent me from working if I don’t?”
Why would an employer adopt a
‘no jab, no job’ policy?
It has been a hot topic of
conversation over the last few weeks that company Pimlico Plumbers have put in
place a ‘no jab, no job’ policy, requiring their workers to have the COVID-19
vaccination should they work in a client-facing position. If the worker refuses
to have the vaccination or cannot show proof of vaccination, they are refused
the work. They now appear to be inserting provisions into their contracts to
reflect this.
This news has left a lot of
workers nervous, concerned and questioning whether they will also be placed
under the same pressure from their employers, and what will be the consequences
if they refuse to have the vaccination.
Whether it is appropriate for an
employer to adopt a vaccination approach like that of Pimlico Plumbers will
depend on the type of work that the worker undertakes, and the level of client
facing exposure that they may have.
For example, if workers come face
to face with individuals in the most medically vulnerable categories, it is more
likely that an employer will put in place a policy along these lines. Also, if the worker is required to continuously work in publicly accessible places where they
are likely to come into contact with members of the public, it is likely that an
employer may consider adopting some form of COVID-19 vaccination policy.
Can an employer put in place a
vaccination policy?
Employers may decide that it wishes to put in place a vaccination policy. Before doing so, we would strongly recommend that consideration is given to:
Charities and not for profit
organisations that engage employees and workers have an obligation to weigh up
the needs of their workers against the needs of the charity/organisation and,
provided they have carried out a proper risk assessment, may be able to argue
that the protection of their staff and customers/clients/charitable work is of
overriding importance to them. No one
size policy should fit all charities and not for profit organisations and
whilst a vaccination policy may be appropriate in one charity/organisation,
this does not mean it is appropriate for all charities and not for profit
organisations. We would strongly recommend taking advice before putting in
place a compulsory vaccination policy for all staff.
When deciding whether to adopt
such a policy, consideration must be given to the rights of their workers. A
requirement to undergo medical treatment (such as a vaccination) may amount to
interference with the workers right to respect for private life. For this
interference to be justified, there must be a legitimate aim in requiring the
vaccine. A charity or not for profit organisation could argue that their
legitimate aim is the need to protect the health of the public, but whether
this will be accepted by the courts will be based on the specific circumstances
of the matter and these circumstances will be heavily scrutinised. The courts
will not view any claims of this nature lightly, and there could be serious
consequences for any charity or not for profit organisation breaching the human
rights of their workers. Again, we would highly recommend seeking legal advice
on this matter before issuing any vaccination requirements.
Can a worker object to the
policy?
Workers may have concerns about a
vaccination policy. Consideration should
be given to the queries above and whether, having undertaken a risk assessment,
vaccinations are still considered to be appropriate for the charity/not for
profit organisation. If a worker raises any concerns, it would be appropriate
to discuss this with them informally. Workers personal concerns over having
vaccines, whatever the reason, should be considered. Employers should explain their
reasoning for putting in place a vaccination policy, whether it is applicable
to all workers in the business and provide information on the risks and
benefits of the vaccination that they are basing their decision on.
Can a worker be refused work
or dismissed if they object to a vaccination?
If a charity or not for profit
organisation wishes to dismiss an employee because of their refusal to have the
vaccine, then they will have to follow the normal fair dismissal procedures and
have a potentially fair reason for dismissal. There are five potentially fair
reasons for dismissal, and an employer must be able to argue that an employee’s
refusal to have the vaccination falls into one of these. The five reasons for
dismissal are capability, conduct, redundancy, illegality or ‘some other
substantial reason. Of course, as this pandemic is unprecedented, there is not
much case law surrounding this matter, but it is possible that an employer may be
able to argue that any dismissal based on the grounds of a refusal to have a
vaccination could fall under conduct, capability or some other substantial
reason for dismissal.
We would stress that whether a
dismissal is fair would come down to the individual facts and whether, considering
the nature of the charity or not for profit organisation, it is reasonable to
insist on a vaccination and/or for the employee to refuse one. For example, an employee who cannot have a
vaccination for medical reasons may also be protected under the Equality Act
2020 and dismissal may amount to disability discrimination if the vaccination
cannot be objectively justified. Consideration should also be given to refusals
by pregnant workers. Public Health England has advised that those who are
pregnant, or who are planning a pregnancy within three months of the first
dose, should not yet have the vaccination. Such employees are likely to be
protected from maternity discrimination under the Equality Act 2010 if they are
dismissed, or subject to a detriment for refusing to have a vaccine.
If the role involves working with
vulnerable individuals and there is no alternative to this, then an employer
maybe able to rely on a refusal to abide by the policy as grounds for
dismissal.
In respect of workers, whether
they can be refused work will come down to the contractual arrangements and
again could still give rise to a potential disability discrimination claim.
Will a worker or employee have
a claim if they are dismissed or refused work?
How the courts will react to any
cases of this nature, we do not yet know. As stated above, this pandemic is
unprecedented and the case law on similar issues is extremely limited. If many
charities and not for profit organisations do decide to adopt the ‘no jab no
job’ approach though, there is expected to be an influx of unfair dismissal cases,
discrimination on the grounds of age, sex, disability, religion, breach of
human rights and other employment tribunal matters as a result of employees
being dismissed and/or employees resigning over the policy or refusing to
provide work.
Provided the charity or organisation can show that they have reviewed the needs of the employee or worker against the needs of the charity/organisation, then they may potentially be able to defend potential claims.
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