The UK’s vaccination programme is now well underway – a positive sign that a return to normal might be possible in the coming months. But the vaccine rollout could also be putting employers between a rock and a hard place. Is it possible to make it compulsory – like Pimlico Plumbers’ ‘no jab, no job’ policy – without infringing on employees’ rights or opening the business up to a potential tribunal claim? Could employers be protected by existing health and safety rules if they insist employees are inoculated? Or could a failure to mandate vaccinations actually lead to claims from staff who don’t otherwise feel safe coming to work?
The government has said it is not planning on making the vaccine mandatory. In February, Edward Argar, secretary of state for health, told the BBC’s Today programme: “That’s not how we do things in this country.” Argar dodged questions of whether existing health and safety law might protect employers mandating vaccination, but at the same time said nothing directly prohibiting businesses from introducing such policies.
If employers did want to go down the route of making vaccination mandatory, it can be made a contractual requirement. “In certain sectors, such as care homes, it may be viewed as reasonable for an employer to request that all staff be vaccinated,” says Esther Smith, partner at TLT. Although, Smith warns, this would mean changing the terms and conditions of employment, which requires the employee’s agreement. “If the employee does not agree, the employer would be faced with unilateral imposition of change or terminating the contract and offering re-engagement on new terms, both of which come with risks,” she says.
None of this changes the fact that businesses have an implied duty to take reasonable care of the health and safety of their employees. Smith suggests that firms consider redeploying any worker unwilling to be vaccinated, or asking them to work from home before taking any action against them.
Some organisations, in the social care sector for example, may already have contract clauses that state employees are required to have the vaccinations relevant to their role, says Andrew Willis, head of legal and advisory at HR-inform. “If you’re in a setting where you might consider it sensible to at least consider compelling vaccinations, review the contracts you have in place,” he told a CIPD webinar.
However, Willis adds that, going forward, it will be unlikely any employer will find themselves in a position where mandating vaccination becomes necessary to meet health and safety obligations. As such, making vaccination compulsory is “a risky line to take”, he says; one that can lead to claims of unfair or constructive unfair dismissal if an individual is fired or resigns over the issue. If failure to comply leads to a disciplinary action then the employer will need to be able to show at a tribunal that the instruction was reasonable, that the employee’s refusal was unreasonable, and that a fair process took place, Willis says: “There are many things you can do first before seeking to compel somebody to have a vaccination [and] it will be a very rare case where compelling somebody to have a vaccination would be justified at this stage.”
It’s a good idea for employers to create a policy on vaccination if they don’t have one already, says Rachel Suff, senior employment relations adviser at the CIPD. She also suggests companies encourage employees to get vaccinated by running awareness campaigns, holding Q&As with GPs or other medical experts and pointing staff towards official guidance and sources of information. This can all help explain the importance of vaccination and how it can help create a Covid-secure workplace.
Where employees do raise concerns about having the vaccine, it’s important to listen to them and take them seriously. Confidentiality is also important to avoid any stigma against people who don’t get vaccinated. There are many reasons individuals might not want to have the jab – including legitimate health concerns.
Employers should also consider the wider wellbeing of their workforce when approaching them about vaccinations. “Any reluctance at the moment has to be appreciated through the wider context of what people have been living through for the past year,” says Suff. “We’re in a period of heightened anxiety for many people. That needs careful and sensitive management in the workplace, and that extends to how we approach the issue of vaccination as well.”