The UK has achieved incredible success with the creation of the AstraZeneca/Oxford University vaccine, developed and approved in record time and now being used widely across the globe.  It is one of a limited number of vaccines, including Pfizer/BioNTech and Moderna, to have secured authorisation for use in the UK.

Our ordering of the vaccine and its practical delivery have also been a huge success, with it being estimated that the entire adult population will have been vaccinated by the end of July 2021.

This is a key development, as it offers some hope that the national vaccination programme will provide us with a “way out” of the current COVID-19 restrictions. The impact of the restrictions is severe and significant – on the economy, business, family life, health and mental wellbeing.  As such, there is a desire to follow through with the “good news vaccine story” and get as many people vaccinated as soon as possible.  A nationwide vaccination policy, however, is not straight forward and it throws up a number of legal challenges.

The UK’s Prime Minister, Boris Johnson, recently stated that compulsory vaccination was not “part of our culture”. Notwithstanding, trade unions have expressed concern over employers adopting mandatory vaccination policies.

Howard Beckett, Assistant General Secretary of Unite trade union, tweeted that “A divisive narrative is being created about forcing workers to have the jab.” Francis O’Grady, General Secretary of the Trades Union Congress (TUC) has reportedly said: “The government should make clear that making vaccination a condition of employment is the wrong approach. It may be discriminatory and open up employers to legal challenge.”

So what is the legal position?  Can employers insist on their employees being vaccinated before they return to the workplace? The answer is that each case will need to be decided on its own facts – depending upon the health of the employee, their personal circumstances, the nature of their job and various other factors.

Where there is certainty is in the Public Health (Control of Disease) Act 1984. This provides the government with powers to prevent, control or mitigate the spread of an infection. The legislation specifically provides that individuals must not be required to undergo any mandatory “medical treatment”, which includes vaccination. The Coronavirus Act 2020 extended this prohibition in Scotland and Northern Ireland.

Against this backdrop, an employer’s requirement for staff to be vaccinated is likely not to be considered a “reasonable instruction” to an employee. Imposing such a requirement would potentially be a breach of contract and in particular the implied term of trust and confidence. This would enable an employee to resign and claim constructive dismissal. If an employee was successful in a constructive unfair dismissal claim, they would be entitled to compensation, with the current cap applicable to the compensatory award which is based upon loss of earnings being £88,519.

There is also the question of potential discrimination claims. This could include discrimination based upon religion or age. For  example, if a young employee was dismissed because they had not been vaccinated, but they were unable to have a vaccination due to the roll out programme, then this could amount to age discrimination. Pregnant employees are another protected group and they are not currently recommended to receive the jab. If an employer were to take any action – for example withholding pay or trying to dismiss them - this could amount to a claim for discrimination based upon their pregnancy. There is also the rise of the “anti-vaxxer” – could such beliefs be considered to be protected philosophical beliefs?

We’ve heard in the news that some companies have recently announced plans to bring in a “no jab, no job” clause into the employment contracts for new staff. This would contractually oblige new employees to be vaccinated if they wanted to take up their role and could result in discrimination claims, if individuals are not hired due to their refusal to be vaccinated.

And what is the position for existing staff?  Current employment contracts are unlikely to include the necessary provisions to enforce a “no jab, no job” rule, leaving employers encouraging rather than mandating vaccinations.

Research from YouGov found that 21% of respondents said that they were unlikely to get the vaccine, with 12% saying that they were unsure. The recent questioning of the side effects of the vaccine could increase these percentages further. This could result in an employer having an extremely difficult task in managing the workforce. A policy which allowed voluntarily vaccinated employees back into the workplace, whilst others remained at home could potentially be justifiable in some circumstances but would not be risk free.  Would they be paid?  Would they be allowed to work from home, if possible or would it be unpaid leave of absence? How could the employer satisfy them that they were not being overlooked for promotion opportunities, and what about the damage to their mental health?

There are some sectors where it may be reasonable for an employer to insist on vaccination. This would include healthcare and/or care home settings. In line with this, Barchester Healthcare, one of the UK’s largest providers of residential care homes, has said that it would only employ vaccinated staff. 

If a care worker refused to be vaccinated and was dismissed as a result or suffered any other sort of detriment (such as being subject to the disciplinary procedure or having their pay reduced), the employee could potentially bring a claim against their employer. The employer would then be forced to explain why they considered the requirement to vaccinate was justified. To avoid disputes arising in this area, the Government is considering whether or not to introduce a legal requirement for care home workers to be vaccinated, so ‘watch this space‘.

The immediate health benefit of encouraging workforces to be vaccinated is clear. There are, however, many factors to be considered and a holistic approach is recommended, which takes into account each individual’s personal circumstances.

Visit our guide for the latest information on the COVID-19 vaccines

Written by Alison Loveday, Partner, Kennedys.  For more information visit Kennedys’ website.

More information is available on the UK Government’s Coronavirus Business Support website. For more personalised advice call us on: 0161 237 4128 or email us at: BGH@growthco.uk 

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