What employers need to know about mandating vaccines

Kimberley Barrett-St.Vall explores the legal implications for businesses that try to enforce a ‘no jab, no job’ policy

What employers need to know about mandating vaccines

As we move closer towards a sense of normality post-pandemic, debate has begun around mandatory vaccination and the impact this could have on the workforce. The UK government has confirmed that all staff in care homes will have 16 weeks to get both jabs or else face being redeployed or potentially losing their jobs, with a potential to extend mandatory vaccinations across the NHS in addition. 

However, we’re yet to see the so-called ‘no jab, no job’ policy playing out in other sectors, despite a high-profile plumbing business stating it would enforce the rule earlier this year, but notably has not yet executed this. 

When it comes to enforcing mandatory vaccinations, employers need to consider the legal implications and unfair dismissal claims they could face, ranging from a human rights violation to indirect discrimination under the Equality Act. 

It’s essential to consider vaccinations in the context of the evidence attached to them. Currently it could be argued that there is no evidence the vaccines reduce transmission, merely that those vaccinated are unlikely to experience the most severe symptoms. 

An employee could feasibly argue that they’re not putting their colleagues at risk by refusing to receive the jab, only themselves if they contract Covid. But what specific laws protect employees if they refuse a vaccine? 

Human Rights Act 1998

There is an argument that mandatory vaccines could be in breach of the European Convention of Human Rights (ECHR). Article 8 provides the right to privacy, and mandatory vaccinations could be considered an unnecessary invasion of this privacy as there are other, less invasive ways to minimise the risk of transmission in the workplace, such as social distancing and wearing a mask. 

Employees who reject vaccination because of their religion could rely on Article 9, which states: “Everyone has the right to freedom of thought, conscience and religion.” 

Article 14 can also be relied upon as it states that those who do, should be able to reject the vaccine without facing discrimination.

It’s worth noting the UK remains signed up to the ECHR, and the Human Rights Act 1998 forms part of domestic legislation, despite Brexit, so these laws are still applicable.

Equality Act 2010

There are also several ways of implementing a ‘no jab, no job’ policy which could amount to indirect discrimination in relation to protected characteristics, including possibly age, disability, pregnancy, or religion. 

Employers could face claims of age discrimination, if they ask employees who have not yet had both doses of the vaccine. If someone has long Covid, which could be classed as a disability under section 6 of the Equality Act, they have been advised not to have the vaccine. 

On 16 April 2021 the Joint Committee on Vaccination and Immunisation (JCVI) advice was updated to confirm pregnant women should be offered the vaccine; however, it will then be an individual choice. 

Making vaccinations mandatory for anyone with protected characteristics could open employers up to indirect discrimination suits.  

Final thoughts

There will no doubt be some employers who want to proceed with a ‘no jab, no job’ policy. However, even though other types of mandatory vaccines have been acknowledged by the ECHR – most recently the Czech Republic’s mandatory pre-school vaccination requirements for children – we are unlikely to see mandatory Covid vaccinations outside of health and care workers in the immediate future. 

At present, my advice for employers is to ensure they have Covid-secure measures in place and continue to prioritise the safety of their staff, as well as communicating with them to understand what they’re comfortable with. They should also bear in mind that even with all employees vaccinated there is nothing in the HSE or UK government’s Covid-secure guidance that suggests that once staff are vaccinated, Covid secure measures will no longer be required. 

Kimberley Barrett-St.Vall is a partner in employment law at Napthens Solicitors