Mandatory vaccination policies ‘too risky’ for UK employers

Can UK employers require staff to be vaccinated? That is a question that has been doing the rounds since the Pfizer vaccine became available in the UK. People Management asks 'Can employers force staff to have the Covid vaccine?' and highlights a very unlikely situation in our view - employers forcing staff to be vaccinated under duress which would amount to unlawful injury with criminal implications. The HR Director asks a similar question but looks at the more realistic risks of employment claims, chiefly discrimination and constructive dismissal, while Personnel Today looks at the ethical dimension balancing the need to keep people safe on the one hand, with respecting the wishes and liberties of staff, including the so-called anti-vaxxers. Of course we are advising on this issue every day and Anne Sammon and Katherine Metcalfe have covered all the key issues in their guide called 'Coronavirus: Can employers require staff to be vaccinated?', Katherine dealing with the health and safety angle, Anne the wider employment piece. So let's address this question of mandating a vaccine. How many companies are actually going in that direction? It's a question I put to Anne Sammon who joined me by video link:

Anne Sammon: "My experience at the moment is that lots of clients start the discussion thinking that maybe they might want to mandate, or very actively encourage, employees to be vaccinated but having had some legal advice on that subject tend to kind of back-track and decide that actually they will probably remain more agnostic and that's because there is a whole myriad of legal risks associated with requiring employees to have vaccination. One of the issues at the moment is that we don't yet know what impact vaccination has on transmission rates. If there becomes evidence that suggests actually vaccination can lower the transmission rate then that will give some employers in certain sectors more scope to be able to justify why they might want their employees to be vaccinated. So for example, in the social care sector, you can see that if the vaccination has a positive impact on transmission in that it lowers that transmission rate, then employers may decide that that actually it's really important for their staff to be vaccinated because that will lower the risk of transmission from the staff to patients and vice versa. So that's a real consideration at the moment for a lot of employers around what will the data show about the transmission rate. The other thing that we're starting to see is employers thinking about whether or not the 'anti-vax' movement could actually be a protected belief and therefore something that they need to be mindful of when they're looking at discrimination angles. Now, as we know from some of the cases around veganism, environmental beliefs, establishing that something is a protected belief is very fact specific so the employee involved will have to show that this belief is core to their way of life and that actually what they do throughout their life is informed by that particular belief and so it's very difficult to say, absolutely, someone who has an anti-vax belief that that will be a protected belief, or it won't be a protected belief, because it very much depends on the circumstances and the way in which the individual manifests those views."

Joe Glavina: "In your article, Anne, you talk about the indirect discrimination risk. What is that risk?"

Anne Sammon: "So I think it can manifest itself in a number of different ways. I think because of the way in which the government has said that it will roll out the vaccine there is differential treatment between those individuals based on age, so we're seeing a vaccine programme that will be based on how old someone is and so if you're an employer and you're forcing people to have vaccination when the NHS makes it available, that's going to have a bigger impact on the older part of your population than the younger part of your population, even though it's an apparently neutral provision. So I think at the moment with the rollout being the way that it is, there is a real risk of an age discrimination claim through indirect age discrimination. That risk may change, the risk profile will change, over time as we see how the vaccine take-up has been affected and whether or not there is disparate treatment between the different groups of employees based on age."

Joe Glavina: "Presumably any employers choosing to enforce a policy and actually dismiss employees who refuse a reasonable request would still have to follow a fair procedure?"

Anne Sammon: "Absolutely, the dismissal will have to fair one and I think, again, this is one of those situations where it's going to be so fact specific as to whether or not we're looking at something that's a reasonable instruction and that's going to depend on the employee, their individual risk profile, whether they've got any underlying disabilities, whether there are any other reasons that they might not want to take the vaccine, so we've seen a lot of discussion in the press over the last few days about whether or not the vaccines that are being produced will be halal and that could have an impact on a significant proportion of the population if the vaccines that are rolled out or not. So I think employers will have to look at every case on their specific facts and details and carry out an assessment and part of that assessment involves talking to the employee in understanding their rationale for refusing the vaccination and taking that on board and properly considering it."

The guide: 'Coronavirus: Can employers require staff to be vaccinated?' is one of a number of guides by our employment team covering issues to do with Covid-19. You can find all of those, plus news of the latest developments, on the Outlaw website.