No jab, No job?

More than 30 per cent of large UK firms 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

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, staff 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 left with guidance that could result in them dictating policies that can be challenged by its staff?

This is a confusing and challenging time for employers who are duty bound to offer a safe working environment whilst having concurrent obligations not to discriminate against or breach its staff contracts. In addition, employers are tasked with trying to juggle operations with staff 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 staff 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 off by a medical practitioner?

LIABILITY

It is worth noting that the manufacturers of the vaccine will not face any civil liability for effects claims. Also, the government have added the COVID vaccine to their vaccine damage payment scheme, which awards benefits to individuals who have suffered adverse effects 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 staff 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 staff policies; update and create new documents, if necessary, in line with current government regulations. Make sure these are accessible to all staff and are done in a way that is not discriminatory. Any concerns by staff should be addressed sensitively and promptly. The key is transparency, clear rules and training with clear communication provided by senior members of staff to avoid confusion or concern.