Pimlico Plumbers has hit the headlines following an announcement that it will refuse to offer opportunities to workers who are required to visit customer premises unless they can show they have been vaccinated. Employers in many businesses will be considering their own response to employee concerns about vaccination, and we consider below some of the issues that arise.
Consequences of refusal
If an employer imposes a condition of vaccination for continued employment or access to work, what challenge can it expect? Clearly, if dismissal results, unfair dismissal claims may be expected.
If staff come into contact with members of the public, clients or colleagues in the course of their duties, then an unreasonable refusal may be characterised as either “some other substantial reason for dismissal”, or as an issue of conduct or capability.
As with every dismissal, a fair process must be followed and part of that will involve considering the employee’s reasons for refusal and whether there are alternatives to dismissal. Providing employees with access to good sources of advice about vaccine risk and benefit are likely to be part of this process.
Given that tribunals should not substitute their own judgment for that of the employer, then, provided the employer has carried out a careful weighing up of the concerns of the employee against the needs of the business, its customers and employees, it may be possible for the employer to successfully defend a dismissal or refusal to provide work in these circumstances.
Relevant factors include the needs of those with whom the individual can be expected to come into contact. For example, refusal of vaccine by employees working with those who are medically vulnerable is likely to cause significant concern to an employer, given that in any population there will always be those who, for medical or allergy reasons, are unable to have the vaccine and must therefore rely on measures taken by other people.
Do employers have to permit working at home for an employee who chooses not to have the vaccine?
Again, the employer is entitled to consider reasonably the interests of various stakeholders with whom it must deal. If all staff are being required to return to the workplace, then it may be reasonable to refuse to make exceptions for individuals who are judged to have refused vaccination without good reason.
Employers may also seek to rely on a wider public good, keeping in mind that employees may have to use public transport and other publicly accessible places in the course of performing their duties.
What about employees asserting rights to freedom of expression and belief?
We know from previous cases that the range of beliefs that are protected as “religious or other belief” under the Equality Act 2010 is capable of being wide ranging, and non-religious belief need not be similar to religious belief to gain protection. Veganism has been held to be a belief capable of protection and therefore assertions of a right to refuse vaccines based on animal testing or the use of animal products in development and production of vaccines might arise. More broadly, general human rights principles relating to personal choice, privacy around disclosure of whether an individual has been vaccinated or not, and bodily autonomy might also be asserted.
Human Rights Act considerations are directly enforceable in the public sector, but not for those employed in the private sector, though they do bind courts and tribunals. Rights related to belief and to human rights are not absolute and must therefore be balanced against the interests of others affected.
A belief is protected but only to the extent that the employer’s response cannot be described as a proportionate means of achieving a legitimate aim. A wish to promote a safe workplace and safe provision of services will be a legitimate aim and employers will need to show in each case that a dismissal or refusal to accommodate the employee’s wish is a proportionate response.
Ladele v London Borough of Islington, in which a civil registrar refused to conduct civil partnerships, concluded that employers were not obliged to offer a reallocation of duties where there was a conflict between the individual’s belief and the duties they were legitimately required to perform. This might suggest that employers do not have to restructure their staffing to accommodate beliefs.
All of this remains to be tested in tribunals and courts and the first stage for employers faced with refusal must be to understand, as far as possible, the reasons for the refusal and to consider what their reasonable response should be. Some employees will be unable to accept vaccination for medical reasons and a clear enquiry should be made into that possibility.
Tribunals are not likely to override the employer’s view as to proportionality, but employers will wish to take care, not least to avoid becoming test cases. A thorough investigation of the employees’ position and clearly reasoned responses will be a key part of a business’s response.
Yvonne Gallagher is a partner in the employment team at Harbottle & Lewis