Businesses have prioritised employee health and safety during the pandemic, but the Covid-19 Vaccine has split opinion, with some people rejecting it for a variety of reasons, including medical conditions, religious beliefs, or even fear and confusion whilst others believe that all employees should be vaccinated. Whether or not businesses can – or should – make vaccines mandatory is still up for debate. We are going to explore both sides of the spectrum in this article. 

Let’s take a look at both sides of the argument…

Yes: Covid-19 Vaccine Jabs should be Mandatory 

Charlie Mullins, the CEO of Pimlico Plumbers in London, was probably the first employer to publicly announce plans to implement a “no-jab, no-job” policy for current and potential employees. Workers would be required by contract to provide proof of receiving the COVID-19 vaccine and failure to do so would result in them not being hired by Pimlico.

After conducting a risk assessment, an employer might theoretically mandate vaccination as a health and safety provision if it could prove that providing a vaccine is the most fairly possible way of minimising the risk of COVID-19. Employees who reject the vaccine risk being dismissed for violating the company’s health and safety policies. Covid-19 is a reportable disease under the Reporting of Injuries, Diseases, and Dangerous Occurrences Regulations, so this is most likely to apply in healthcare or other environments (RIDDOR). However, since the Government is the largest employer in health and care settings and does not require vaccination, employers may need a compelling excuse to take a different stance. This may be determined by the conditions at the moment, such as the most recent clinical findings on the vaccine’s ability to protect against infection and transmission, the role of Covid-vulnerable workers in the workplace, and the alternative Covid-secure steps that consumers, employers, contractors, and other employees can reasonably expect to take.

It’s a good idea to keep copies of any communications that employers create to promote vaccination in case any pro-vaccine workers argue that the employer isn’t doing enough to meet their health and safety obligations.

No: The Covid-19 Vaccine should be optional

There are without doubt merits in the “For” position, however, since the vaccine is not yet available to those under the age of 35 and is not approved for some groups, such as pregnant women, there is a risk of discrimination if a mandatory vaccination program is implemented. You start discriminating against young people and pregnant women right away.

The majority of people will support the chance to be vaccinated against COVID-19, but there is a growing percentage who are hesitant about this particular vaccine or, indeed, are unable to receive the vaccine. Mandating the vaccine until all people have been given the chance to be vaccinated, for example, will discriminate against younger workers. If it turns out that BAME groups are more likely to oppose vaccination, as well as some religious reasons – mandating the vaccine could discriminate against them. (Early signs indicate this, but it is unclear at this time.) Where there is a possibility of discrimination, employers must be able to justify their policy by showing that they have a valid goal (e.g., health and safety) and that mandating the vaccine is a proportionate means of achieving that goal.

Some of the general public would rather wait it out until more is known about long-term safety of vaccines. People who do not believe in vaccinations are likely to be covered under the Equality Act’s philosophical beliefs clause, as well as the European Convention on Human Rights. Every company must understand what it is trying to protect and accomplish, as well as each position individually. Many of the general public would rather wait it out due to the vaccines being in clinical trials 2023. 

There are no advantages to an organisation other than nursing homes and hospitals implementing such a program, when businesses were asked. According to Neil Morrison, group HR director at Severn Trent, although his company supports staff to get the vaccine, it does not believe in mandating it due to “demographic concerns” about vaccinations.

Such a suggestion raises the possibility that other employers and the Government will follow suit, requiring all employees to be vaccinated or risk losing their jobs. It’s easy to see why the prospect of ensuring that all employees are vaccinated appeals to the Government and employers. Now that the vaccine program has begun, there is a lot of pressure from the general public, other staff, and consumers to try to have as many people vaccinated as possible. So, would the Government or other employers implement such a policy for all workers, and if so, will it be legal?

Let’s first consider some of the practicalities

Caution should be exercised around proposals to implement a “no-jab, no-job” policy for many reasons. There is an immediate functional barrier in the form of vaccine availability. With the exception of frontline health and social care workers, the Government regulates delivery, and the priority recipients are all of an era where they are largely out of the competitive labour market.

Despite the fact that some employers have said that they will pay for vaccinations to be given to their workers, the Government has stated that stockpiles are likely to be entirely consumed by NHS use, even if and when supplies are increased.

Many employees may be reluctant to endorse the vaccine due to religious or other deeply held values. Others could have contraindications to vaccination, which would have a significant impact on their health if they were forced to take it. In other words, a large number of employees will be unable to comply with a vaccination mandate due to no fault of their own.

Now, what does the Law say?

In Northern Ireland and the Republic of Ireland, employees with 1 year’s service (2 years in GB) are eligible to make a claim to the Industrial Tribunal or WRC where they believe they have been unfairly dismissed. The question employers need to consider is whether a dismissal on the grounds of refusing to be vaccinated is likely to be deemed to be a fair reason for dismissal?

Aside from all of the factors outlined above, there are legal obstacles to a “no jab, no job” policy. The Public Health (Control of Disease) Act of 1984, which gave rise to the COVID-19 health regulations, states that no one should be forced to seek medical care, including vaccination. This does not preclude an employer from requiring an employee’s consent to a statutory obligation that the employee be vaccinated before hiring them. However, if “consent” was freely and willingly provided in such circumstances will still be a question.. The 1984 act would apply if it was thought that it was not freely given.

Under the Health & Safety at Work NI Order 1978*, an employer’s obligation to take “reasonably practicable” health and safety measures applies not only to staff, but also to those who “may be affected” by the employer’s business practices, such as contracted “workers.”. On the other hand, it has long been known that refusing to hire anyone because they refused to submit to medical examinations to check for the existence of such conditions is a breach of that person’s right to privacy in health-related matters or in respect for individual rights to freedom of choice and privacy.

A parallel can be drawn with the legal theory of “economic duress,” which states that when economic coercion forces the weaker negotiating party to agree to a contract or accept specific conditions, the contract is voidable. The extent of this principle would be determined in a case currently pending before the Supreme Court, in which the stronger party actually believed it was entitled.

Employers may want to consider offering bonuses to workers who consent to a change in the contract’s terms. However, in NI & ROI, this may also be in violation of the myriad of different pieces of equality legislation (the Equality Act 2010, section 39 in GB), which prohibits discrimination in the terms on which employment is offered or rejected based on a “protected characteristic.” The relevant characteristics in the case of “no-jab, no-job” are likely to be age, gender, disability, and religious or other beliefs. 

It’s unlikely that an employer’s “no-jab, no-job” policy, if extended fairly to all workers or applicants, will lead to overt discrimination under the act. However, such a policy would almost certainly amount to a “provision, criteria, or practice” that discriminates against groups with the above-mentioned protected characteristics, thus constituting a “provision, criterion, or practice.”

Under the law, there is a defense known as “justification,” which allows an employer to discriminate if it is a proportionate means of achieving a valid goal. Protecting the wellbeing of co-workers and consumers is unquestionably a worthwhile goal.

However, it’s difficult to see how requiring workers to undergo a medical procedure whose effectiveness has yet to be proven can be considered “proportionate” while other, less punitive measures, such as working from home, social distancing, wearing face coverings, and hand washing, are arguably more successful.

Any effort by an employer to unilaterally amend the terms and conditions of an agreed employment contract will almost certainly be considered a fundamental violation. Employees will be able to file a lawsuit for constructive wrongful dismissal, claiming that they had no choice but to leave their employment. It remains to be seen how successful such a claim would be.

Covid-19 Vaccine – What the Legal Experts have to say

Emma McIlveen, Employment Barrister said: “A blanket “no jab, no job” policy is highly likely to be deemed unreasonable. Companies should think carefully about their rationale for requiring staff to be vaccinated. They should also check the contracts of existing staff to see whether they contain any potentially relevant contractual terms. Particular care should be taken with employees that are disabled, pregnant and/or refusing the vaccine on religious grounds. If someone refuses to be vaccinated, their basis for objection should be carefully considered. Undoubtedly we will see very interesting challenges emerge over the next 2-3 years as a result of the COVID-19 pandemic. Mandatory vaccination of staff is undoubtedly an issue which will feature” 

Michelle McGinley, Employment Lawyer of EEF Northern Ireland who works exclusively for employers across all sectors in Northern Ireland said that: “Many businesses are encouraging employees to be vaccinated with some providing paid time off to attend appointments and contractual sick pay if they are ill following it. So far as I am aware none of those businesses have introduced a mandatory requirement to be vaccinated.

There are real legal difficulties in requiring existing employees to be vaccinated but the position is less risky for new recruits. The European Court of Human Rights (in case of Vavřička and others v Czech Republic [2021] ECHR 116) recently held that whilst a compulsory requirement to be vaccinated interfered with the persons Article 8 Convention Rights (right to family & private life) such interference was necessary in a democratic society. Subject to accommodating those persons who refuse to be vaccinated because of pregnancy (now or in the future), disability or because of a strongly held belief there are less risks of claims. Therefore with the vaccination programme progressing through the age bands, you may see some businesses making vaccination a pre-condition of employment. Certainly any considering doing so should first seek legal advice.”

Poll Results:

Whilst writing this blog I carried out a series of polls across Facebook, Twitter and LinkedIn: The results that came in were very interesting:

74% voted NO  –  there shouldn’t be a mandatory vaccine 

26% voted YES – there should be a mandatory vaccine

And, so to conclude…

As with other Covid related advice, we are still in uncharted waters regarding the Covid-19 Vaccine as we have not yet heard the Tribunal’s view in this matter. As it stands, there appears to be a consensus that any employer who implements a “no jab, no job” policy, would almost certainly be breaking the law under existing legislation. Until such times as we have broad legislative reform or, in the absence of the same, some relevant case law to the contrary, professional advice should be sought prior to taking any form of action.

* GB Act  for GB based employers and the Safety, Health and Welfare at Work Act 2005

For employers in the Republic of Ireland.

**The author recognises that the topic of Covid vaccines is an emotive and divisive subject. Every effort has been taken to put forward a balanced approach, based on opinions gathered from multiple sources and no inference should be drawn as to the author’s personal opinion.

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