Mandatory Workplace Vaccination - Could My Boss Fire Me If I Refuse to Get Jabbed?
With the worldwide-sweeping COVID 19 pandemic, all sectors of society have had to adjust to the new circumstances of living alongside this highly contagious illness. It is widely hoped that the days of long enduring lockdowns are behind us now that coronavirus vaccinations have been developed and widely distributed, enabling a sustainable path forward for the global economy and our very livelihoods. It cannot be said, however, that the process of vaccination has come without controversy. From simple indifference, to anxiety, to ideological taboo, many people in the world are opposed to being vaccinated, and this comes in addition to those who are physically at risk from vaccination (i.e. allergies). Whatever your stance on vaccination, the idea of mandatory vaccination is one that you may have reflected on and debated with friends or family. Employment and the workplace are what would face the most substantial implications of mandatory vaccination, and this has already been seen.
Is it legally compulsory for me to be vaccinated?
The Vaccination of people working or deployed in care homes: operational guidance published by the government has brought into effect from the 11th November a requirement for all workers based or deployed in a care-home to be double jabbed unless exempt. This does not include visitors but does include non-medical workers such as hairdressers working on the premises of a care home. Further to this, the government have announced their plans for new requirements in spring of 2022 for all workers in health and social care – including volunteers with face to face contact with service users – to provide proof that they have been fully vaccinated in order to be deployed unless exempt. The NHS has therefore put out advice that workers have their first dose of the vaccine by 3 February 2022, since the current advice is that doses should be given 8 weeks apart.
This may come as a surprise as you may be aware that, generally speaking, vaccination has rarely been mandatory in the UK. The United Kingdom Vaccination Act 1853 made it compulsory for children born after 1 August of that year to be vaccinated against smallpox. But as of today, with the COVID 19 pandemic, sectors outside of health and care do not – and likely will not – have a requirement placed on them by an act of Parliament to have all of their workers vaccinated. There should however be an awareness of other workplace legislation, and the possibility that it could be used to push mandatory vaccination policies.
How could an employer encourage or demand that I have a COVID 19 vaccination?
The Health and Safety at Work Act 1974 is silent on vaccination, but it obliges employers to take reasonable steps to reduce any workplace risks; this could likely justify employers encouraging their employees to be vaccinated and to accept boosters to protect themselves and others in the workplace. An encouragement to staff to get vaccinated, however, would likely fall short of the ability to demand that staff get vaccinated. Section 7 of the 1974 act places a duty on employees that whilst at work they will take reasonable care for the health and safety of themselves and others and to co-operate with their employer ‘so far as is necessary’ to meet the duties imposed on the employer by statute. As noted however, vaccination for sectors outside of care is not a statutory requirement. Essentially, employers may be able to query about the vaccination status of their employees, but this will not likely give employers information they can then act on and will carry special category data implications under the Data Protection Act 2018 and the GDPR as it relates to personal health.
Employees that fall into certain categories, regardless of whether they work in care or not, will not be obliged to receive a COVID 19 vaccination. Most prominently, any employee who is medically proven as allergic to a jab will be considered exempt from any requirement to receive one. Additionally, an employee who can show that they have a disability which exempts them from vaccination – or alternatively that they would be discriminated against if they were forced to be vaccinated – will succeed at bringing themselves within the definition of having a disability under the Equality Act 2010. For most recognised disabilities, this will not be difficult, as section 6(1) of the 2010 act provides that a person has a disability if they have a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on their ability to carry out day to day activities. But what about a phobia – and for the sake of this discussion – trypanophobia, a fear of needles?
In a job where an employee has no involvement in administering, nor receiving injections from needles (in other words the vast majority of jobs!), it is unlikely that a fear of needles will have a substantial, long-term, and adverse effect on their ability to carry out day to day tasks in their job. If that employee had a fear of needles, they would unlikely be able to say that their fear of needles stopped them from bricklaying, accounting, handling customers or drafting documents to give examples. Schedule 1 of the 2010 act does however provide that an impairment (trypanophobia for arguments sake) that ceases to have a substantial adverse effect on a person’s ability to carry out their day to day (tasks at work), it is to be treated as continuing to have that effect if that effect is likely to recur. In other words, the prospect of a required routine biannual COVID jab could be grounds for a recurring impairment to that employee to the extent that their phobia is exasperated at every vaccination interval, and therefore such an individual could bring themselves within the meaning of having a disability in the 2010 act. The argument that a fear of needles does not impair the ability to do a job with no involvement with needles could be met by the argument that an employer could not justify that vaccination itself is an essential requirement for the role if he were to try and dismiss an employee who refuses it (discussed next).
Furthermore, regular testing, home working, social distancing, and providing PPE could be considered effective and less discriminatory methods of achieving the required business outcome of increased safety. Justifying mandatory vaccinations without outright authorisation from an act of parliament or any other primary legislation could be difficult for employers.
Could I be dismissed for not having the vaccine?
Unless a reason for dismissal is automatically unfair or discriminatory, such as in the circumstances discussed above, a claim for unfair dismissal can be brought by an employee of two or more years (called the qualifying period of employment). So how would an unfair dismissal claim work in the instance that an employee has been dismissed for not having a COVID vaccination?
Under the new requirements being brought in spring of 2022, dismissal of staff working in health and social care who refuse vaccination – despite having neither an established exemption, nor grounds to argue so – will be able to be lawfully dismissed by their employer. The relevant justifications that an employer making such a dismissal would wish to rely on are contained within the Employment Rights Act 1996 in section 98. These relate to capability or qualification of the employee for performing their job, the conduct of the employee, and some other substantial reason (SOSR).
In the field of health and social care, section 98(2)(a) relating to capability and qualification are likely to be viable grounds for an employer to successfully defend a dismissal of an employee. An employee who has regular close contact with vulnerable individuals will unlikely be able to conduct their work with the level of safety required if they are unvaccinated, and when this is coupled with an overarching requirement for staff of this kind to be vaccinated, an employer respondent may successfully justify the dismissal to an employment tribunal showing that it meets the principles of fairness set out in the 1996 act.
An employer can justify a dismissal on the basis of their employees’ misconduct (section 98(2)(b) of the 1996 act). If a manager asks a member of his staff to get a vaccination, and they outright refuse, could this amount to misconduct justifying dismissal? Firstly, refusing an instruction from an employer would fall short of gross misconduct (characterised by violence and theft), but would potentially be misconduct if it was seen as disobeying a reasonable request. However, a tribunal would have to accept the argument that a request to an employee to get vaccinated was a reasonable one in order to make a finding of misconduct; and if getting jabbed is not essential to a role, an employer may have trouble proving this.
What could turn out to be the heaviest point of litigation on this issue, is the ‘some other substantial reason’ justification for dismissal. For a reason that falls outside of capability, conduct or redundancy, some other substantial reason (or SOSR) is a catch-all provision that enables miscellaneous justifications by employers for dismissals that a tribunal is convinced are reasonable and persuasive.
SOSR contains a two stage test:
- Firstly, the employer has the burden of proof in showing that the SOSR is the sole or principal reason for the dismissal; and
- Secondly, the employer must then show that the decision to dismiss for SOSR was reasonable in all circumstances (including the size and administrative resources of the employer's undertaking). This will be determined "in accordance with equity and the substantial merits of the case”.
So far, we have observed that it may be difficult for a sector outside of health and social care to justify mandatory vaccination and/or arguing refusal for vaccination is grounds for lawful dismissal. This generally seems to still be the case, but it seems likely that SOSR could be the most feasible ground for employers to purport to justify a dismissal. As there is currently no case law on dismissal for refusal to vaccinate against COVID, this may change further down the line if later legislation points towards a stricter approach to vaccination in sectors outside of health and social care.
How we can help
Please contact Litigation Friend if you are impacted by any of the above.
Benjamin Olley[email protected]