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Medical studies have started now to suggest
being fully vaccinated makes it less likely
you can transmit the virus or if you do it’s
a lower level. As such many employees may feel
safer when their colleagues have been vaccinated.
However, how does any employer juggle those
unhappy or anxious to have it, as presently it is
not lawful to make having a vaccine mandatory.
However, if the employee does not have a medical
condition or is not refusing on grounds of a protected
characteristic such as religion then can employers
require them to have the vaccine for health and
safety purposes – thus avoiding a claim?
This is possibly a good argument providing the
employer can be confident there is no potential
grounds for a discrimination claim so how far do they
have to go?
CURRENT SITUATION
Mandatory vaccinations are being made lawful in
November 2021 for health care professionals, but not
everyone. As such if employers choose to request/
demand this, they will need to carefully scrutinise
the employment regulations, along with insurance
policies, staƒ policies and contractual terms very
carefully.
The idea of vaccinations being mandatory is
contentious and unprecedent. Prior to the pandemic,
most employment solicitors would have advised
against employers implementing mandatory
vaccination policies. Particularly in respect of policies
introduced retrospectively, as without consent this
would be a unilateral variation of contract which
ultimately could lead to a claim for unfair dismissal
or breach of contract (subject to eligibility). So, will
the government’s change to the law give employers
the legal backing to do this or are employers le¥
with guidance that could result in
them dictating policies that can be
challenged by its staƒ ?
This is a confusing and
challenging time for employers
who are duty bound to
oƒ er a safe working
environment whilst
having concurrent
obligations not
to discriminate
against or breach its
staƒ contracts. In
addition, employers
are tasked with
trying to juggle
operations with staƒ
isolating, some needing flexible
working, some with genuine health
concerns or vaccine worries. This
makes amending their policies
and processes extremely challenging whilst trying
to navigate weekly legal announcements and
being clear as to what is mandatory by law, what is
guidance only or at the employer’s discretion.
CONFLICTS
The primary issue is that forcing staƒ to have the
vaccine could lead to claims for discrimination
under the Equality Act 2006. If the employer were
to introduce a policy that contravenes one of the
protected characteristics of age, disability, gender
reassignment, marriage and civil partnership,
pregnancy and maternity, race, religion or belief,
sex or sexual orientation, the employee may be
eligible to bring a claim in the employment tribunal.
There are also major concerns about whether an
employee would be eligible to bring a personal
injury claim, in the event that they received the
vaccine to retain their job, and it caused a medical
issue, such as a serious injury or allergic reaction, or
in the event that a mother is pregnant, led to the loss
of a baby. In either circumstance, would the employer
be held liable?
If such legislation were to be introduced, and an
employee were to object to mandatory vaccination
under one of the protected characteristics noted
above, would they need to ground this objection in
evidence? Would the employee be required to sign a
medical waiver, or disclose all medical conditions to
the employer and would it need to be signed oƒ by a
medical practitioner?
LIABILITY
It is worth noting that the manufacturers of the
vaccine will not face any civil liability for eƒ ects
claims. Also, the government have added the COVID
vaccine to their vaccine damage payment scheme,
which awards benefits to individuals who have
suƒ ered adverse eƒ ects from various vaccines. Is this
the way the government will protect employers and
employees?
Will this apply to only client facing employees or
those that attend people’s homes?
There will
be lots of
challenges
facing the
government to set
this all out, but
employers will be
the ones bearing the
risks at this moment
in time, until such
time as legislative
changes are made.
Employers will
need to update their
policies and contracts
by reviewing the
rules extremely
carefully, and
consider training its
HR staƒ to handle these matters. They will also need
to consider their insurance policy terms to ensure
they are suitably covered against any claims.
STEPS TO TAKE
If the employer seeks consent, it can arrange
vaccination appointments for employees, but they
need to be careful that they do not treat individuals
less favourably if they refuse to consent to vaccine
uptake say for example, if an employee is disabled
as then they are still opening themselves up to a
potential claim.
The first steps employers should take is to audit
their employment contracts and staƒ policies; update
and create new documents, if necessary, in line with
current government regulations. Make sure these
are accessible to all staƒ and are done in a way that
is not discriminatory. Any concerns by staƒ should
be addressed sensitively and promptly. The key is
transparency, clear rules and training with clear
communication provided by senior members of staƒ
to avoid confusion or concern.
NO JAB, NO JOB? More than 30 per cent of large UK fi rms have signalled that staff may be
asked for proof of vaccination before they can physically return to work. Karen
Holden, CEO of A City Law Firm looks at the legal issues that could arise
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