Vaccination or Termination: Can Employees Be Required to Take the Coronavirus Vaccine?
Key Contact: Claire Knowles
Author: Adam McGlynn
Over the last year, the Coronavirus pandemic has caused widespread disruption to the livelihoods of the British people. At last the distribution of a vaccine provides a light at the end of the tunnel, however, there are many who are reluctant to receive it.
In the UK, individuals are free to refuse receiving a vaccination and the Government has stated that there is no intention to make any legislative amendment or exception to that rule for the Coronavirus vaccine. In light of this, employers may be wondering what options are available to them as they are obligated to take reasonable steps to reduce workplace risks and provide a safe environment for their employees. This would certainly include encouraging staff to receive the Coronavirus vaccination, however, should employers take a stronger stance, it may give rise to a tribunal claim.
Employers taking a strong stance on the vaccine may intend to initiate their disciplinary procedure for employees who refuse to be vaccinated. The ultimate end point of the disciplinary process would be the employees dismissal, however, there is also the risk that a claim arises earlier on the basis of the unfavourable treatment or because the employee believes the treatment already amounts to a constructive dismissal. The most likely claims an employer might face in this situation would be for unfair dismissal and/or discrimination.
An employee would need two years’ qualifying service to bring a claim for unfair dismissal here. If eligible though, the employee would have a reasonable prospect of successfully claiming that they have been dismissed on the basis of an unfair reason, one which is outside the employer’s reasonable range of responses. Employers would argue that requiring their employees to receive the vaccine amounts to a reasonable instruction as it is important for the safety of the work environment and to expedite the business’ recovery. This approach seems logical and in the interest of public safety, especially where the employee does not have a reasonable excuse for refusing. However, whether it is with regard to our fundamental right to respect for private and family life or out of respect for an employee’s genuine concerns about the vaccine, a tribunal would be justified in finding a dismissal to be unfair if solely for the reason that the employee refused to receive the vaccine. Whether the consensus of the courts falls on the side of public safety or personal rights in this argument is yet to be seen and will no doubt be explored in detail over the next year.
In some high-risk roles, such as care home support workers, it would be more likely that receiving the vaccine would be a reasonable instruction and the employer may have greater justification to use ‘refusing the vaccine’ as a reason for dismissal. This justification would be further strengthened if the employee is actively against the vaccine to the point where their conduct goes against the organisation’s stance on the vaccine’s importance. Even if the employee’s reluctance and/or conduct could amount to a fair reason, the employer would still need to follow a fair process which would, among other things, include evaluating alternatives to dismissal such as redeployment away from their current high-risk role.
A reluctance to receive a vaccine is not, in itself, a protected characteristic and so a discrimination claim based solely on that ground would not have a reasonable prospect of success. An employee may, however, try to associate their reluctance with a disability or a philosophical belief that prevents them from receiving the vaccine, though the facts would need to be heavily in their favour to find success. For example, being a passionate member of the anti-vax movement may enable the employee to establish a genuine belief against vaccinations, however, it may fail to be considered a qualifying philosophical belief if the tribunal finds that it is not sufficiently coherent or that the belief is not worthy of respect in a democratic society.
The strongest cases would relate to genuine religious beliefs which prohibit certain medical treatments or certain substances entering the body. Even if a protected characteristic can be identified, however, the employer would still have an opportunity to argue that requiring employees to receive the vaccination is a justifiable means of achieving a legitimate aim, for example, the safety of their staff and clients. Once again, the circumstances may give rise to a stronger justification depending on the industry and the clientele. For example, it would be easier to justify a vaccination policy in relation to medical professional and support workers who work with vulnerable clients.
As the Coronavirus vaccination is made available to more cohorts, please feel free to contact us if you would like to discuss your business’ proposed communications or actions on the topic.