Last week, the UK’s Justice Secretary Robert Buckland was quoted by various news media as having said that "while it is unlikely that employers will be able to ‘legally’ mandate employees to have the COVID-19 vaccination under current employment contracts, he believes that they may be able to do so in new contracts".
I am aware that the secretary’s statement simply mirrors what some UK organisations have already put to practice; requesting staff to take the vaccine, while making new hire contracts conditional on the basis that the prospective hire is vaccinated.
The above sticky situation can best be described as a magnet for employment tribunals and also a nightmare for employers and employees.
Why is it a sticky situation & magnet for employment tribunals (ET) you ask?
Well, the 1974 Health and Safety at Work Act states that “it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety, and welfare at work, of all its employees”. The big question here is determining what legally, is ‘reasonably practicable’ with regards to mandating employees and potential hires to be vaccinated? On the other hand, Downing Street has been reported to say, “it would be “discriminatory” to force someone to have a coronavirus vaccine in order to keep their job”. Also, employees as citizens, from the government’s perspective, have the right to choose whether to receive the vaccination when offered vaccination.
Both situations do not lend themselves to any legal or statutory clarity as to who’s rights or duties take precedence. A violation of the employer’s duty or citizen’s or employee’s or candidate’s rights could be seen as a potential tribunal case.
Read on to gain insight from the perspective of the various stakeholders:
Has a duty not to violate H&S Act 1974 by ensuring that its workforce, through 100% vaccination, cannot spread COVID-19 in the workplace. If some staff exercise their rights not to be vaccinated, they could be disciplined and or dismissed, leading to a potential legal issue based on discrimination.
If non-vaccinated employees are allowed to work with the vaccinated, the vaccinated workforce may feel the environment is unsafe and this could lead to an ET wherein, the employer is accused of violating H&S Act, 1974.
If an employee decides not to be vaccinated due to personal, religious, medical, or otherwise, reasons, mandating them to be vaccinated and or any disciplinary action thereof, can potentially be construed to be a discrimination issue.
Where a job verbal offer has been made and a conditional employment contract issued with a condition being that the prospective hire must be vaccinated, a withdrawal of such offer if the candidate declines vaccination, can, depending on individual circumstances, potentially be seen as a breach of the employment rights law.
Charlie Mullins, the owner of Pimlico, recently declared his organisation will mandate new starters to have the vaccine. Such stance is likely to quickly create a line of divided opinions between employer and workforce. Considering the year 2020, saw a spike in employment tribunal cases compared to 2019. Covid-19 continues to maintain its reputation as a significant factor causing a surge in employment tribunal cases. In the absence of new laws making navigation around COVID-19 clear for employers, the development of COVID-19 policies that are consultative and reasonable will seem the best approach to avoiding costly tribunal cases and keeping any workforce safe, engaged, and performing.
Do you have a Covid-19 vaccination policy? Having a carefully thought out one can be the difference between employment tribunals and a continuously engaged workforce.
Since you are here, below are some:
Q & A on Employers, Employee, and the issue of taking the COVID-19 Jab
Why will some employees not be vaccinated:
Some people may choose to exercise the right not to be vaccinated for religion, health, fear, or other reasons.
Can organisations mandate employees or new hires to be vaccinated?
It depends and is indeed, a dilemma: While employers can argue on the side of the 1974 H&S Act, which requires them as a duty to provide a safe work environment i.e in this instance, likely interpreted as having the workforce vaccinated to prevent spreading the virus in the workplace. However mandating vaccination potentially, violates an individual’s right to choose to be vaccinated or not.
Lastly, current employment laws, practices appreciate the need for employers and potential hires to negotiate the terms of the employment contract, it is, however, obvious which of both these stakeholders wields a greater bargaining power. In the current situation, perception of the use of this power may be viewed less leniently if the employer rescinds a job offer due to a candidate choosing not to be vaccinated.
What are the chances of ETs arising from this situation?
As mentioned above, it is a very tricky and sticky situation. If the government were to mandate vaccination for all citizens, it then becomes an easier and clearer decision-making process for employers. However, as long as taking the vaccine remains an issue of choice for the individual, the chances of ETs arising are very high. As such, my advice to employers is to develop a very reasonable COVID-19 policy that addresses the issue of vaccination – particularly as the UK is highly expectant of lockdown rules to be relaxed, leading to a gradual return to office space working again.
What options do I have if I have employees refusing to be vaccinated?
There are some options available to be explored. However, regardless of which option or combination of options an employer chooses to adopt, empathetic consultation needs to be the basis of engagement with employees. e.g assuming a non-vaccinated employee working from home is due to return to the office, an option is to carry out a job assessment to determine if the employee can effectively continue to work from home, while his/her colleagues return to the office space.
If my colleagues are all vaccinated and I’m not, surely, I am of no risk to them?
The CDC (American Centre for Disease Control and Prevention), as of Feb. 3, 2021, published that receiving the Covid-19 vaccine, will prevent the recipient from falling sick with COVID-19 as the vaccine teaches the recipient's immune system how to recognise and fight the COVID-19 virus.
Based on the above, it seems a non-vaccinated employee should not be a risk to their colleagues however, the CDC also published that there is currently no knowledge on the certainty that getting the vaccine prevents recipients from spreading the virus. Thus, working with vaccinated colleagues puts non-vaccinated colleagues at risk of being infected. A risk any good employer will definitely and reasonably try to avoid.
What other measures are available to employers to ensure workforce safety?
Some organisations have established frequent testing to foster office space working in safety. The government states that before employers establish employee testing programmes, they are advised to ensure clarity and compliance with guidelines surrounding testing programmes and data protection. It should be noted that cost is a factor to consider when implementing testing programmes.