The Covid-19 vaccination programme is progressing quickly in England, with employers across Gloucestershire increasingly seeking clarification about whether they can insist on their staff being vaccinated – with some organisations already asking their employees to inform them and provide proof of their vaccination status.
SoGlos spoke to the well-known employment law experts at Sherbornes Solicitors Ltd in Cheltenham, to find out how Gloucestershire businesses can navigate this topical new area of employment law.
About the expert – Darren Sherborne, head of employment at Sherbornes Solicitors Ltd
With a long career in employment law stemming back to working for trade unions in 1991, Darren Sherborne is regarded as the most well-known employment lawyer in Gloucestershire and is recognised for a practical, down to earth approach.
Since embarking on his career, Darren has achieved a master’s degree in industrial relations law, was appointed as an arbitrator for ACAS, has been a contributing author for numerous legal practitioner books and appears regularly as a commentator in the press and on the radio, as well as being instructed in ground-breaking legal cases.
Is being vaccinated against Covid-19 mandatory in the UK?
There is currently no legal requirement for people to have the Covid-19 vaccination and it is unlikely to become mandatory by law.
Can employers refuse to employ someone who isn’t eligible to be vaccinated?
Not everyone can have the vaccination yet, with the government setting the order of priority for those being offered it and age being a significant factor in that order of priority. So, at the moment, refusing to employ someone who is not yet eligible is likely to be age discrimination, but it is also justifiable.
Can employers stipulate they require new staff to be vaccinated?
Just as an employer might stipulate in a contract of employment that an individual must hold a particular qualification as a prerequisite for the job, it’s possible that companies might require individuals to provide evidence that they have been vaccinated as a requirement for employment.
Are there any potential pitfalls for employers here?
The problem with this approach is that there may be reasons why someone is not able to have the vaccine, for example if they have a particular medical condition preventing them from being vaccinated – or where it is not advised, for example if they are currently pregnant. Alternatively, the individual may object on religious grounds.
In such cases, a requirement to be vaccinated would be indirectly discriminatory, in which case the company would need to justify why they have such a requirement.
On the other hand, somebody who simply distrusts vaccines while buying 20 frozen burgers from the discount store for £2 is not likely to have a strong argument.
Are there any legal justifications for insisting that new employees are vaccinated?
In the absence of any good reason for refusing to be vaccinated, the employer is likely to be justified in refusing employment to such a person, simply on the need to provide a safe working environment for the rest of its staff.
Do the rules differ for current employees who refuse to be vaccinated?
Not only do all of the above points apply to existing staff, but in addition employees with more than two years’ service would also have the right to claim unfair dismissal unless the employer can prove that the dismissal is fair. This underlines the need to listen to the employee and consider all circumstances.
Why might some employers insist on their staff being vaccinated?
It is possible that within some sectors customers or clients may refuse to deal with staff who have not been vaccinated. For example, customers of care providers or of the hair and beauty sector.
It might be possible to move employees to work with alternative customers. However, if the majority, or all, customers require those they are coming into contact with to be vaccinated it may get to the stage where the employer is unable to offer work with alternative customers.
In any event, this approach would leave the employer vulnerable to claims that it was not providing a safe working environment.
Are there alternatives to dismissing staff who refuse to be vaccinated?
Before getting to the stage of dismissal, the employer would need to show that they have looked at alternatives to dismissal. For example, the continued use of PPE or being moved to a different job that does not involve working with customers. In any event, natural selection should remove the problem of people refusing to be vaccinated in the long term.
And then would dismissal be justified?
It is our view at this point that an employer would be justified in requiring vaccination on the basis of providing a safe system of work, provided always that the employer has considered, (and documented those considerations,) all other possibilities, balancing the effect of the requirement on the employee, with the risks and dangers of not having that requirement to the rest of the workforce.
What about employees – can they refuse to return to work until they are vaccinated?
On the other side of this coin, we are also seeing questions from employers where staff are refusing to attend work when required to return from furlough unless they or their colleagues are vaccinated.
The employer must start by looking at whether or not they can provide a safe system of work for the employee and why the employee feels vulnerable.
If the reason is that the employee should be shielding, then the employer is well advised to allow the absence until that employee is vaccinated.
If it is because the employee is simply nervous, then the employer should take GREAT CARE to ensure that they explore the risks with the employee and agree solutions, rather than simply dismissing the employee.
What is the danger here for businesses?
To dismiss someone in their scenario exposes the employer to a claim that the employee is dismissed for raising health and safety concerns and this is a huge reputational and financial risk.
So, what would be your advice?
Ultimately, given the possible legal pitfalls, as well as the potential sensitivities some people have around vaccination, employers should always listen and consider what’s been said in all circumstances. The important thing above winning any legal case is helping people not to die. If you are unsure you should contact your solicitor who will always be happy to help you.