Employers should consider their workforce’s specific circumstances when seeking to introduce and enforce Covid-19 vaccination policies to avoid unfair dismissal and potential discrimination claims, says a legal expert.
It follows discussions in the US around vaccine mandates for teachers and the news that CNN has sacked a number of its employees for attending the office without being vaccinated against Covid. While US workplaces can legally mandate vaccines for workers, and dismiss staff if they fail to comply, it is far from clear that UK employers can do the same. Further, UK businesses could face claims of unfair dismissal if they let staff go based on refusal of vaccinations.
If dismissals are made, employees with two years of continuous service are eligible to bring an unfair dismissal claim in the employment tribunal. Those who are dismissed having refused vaccination for medical reasons or on grounds of religion or belief could potentially bring discrimination claims regardless of their length of service.
Julian Hoskins, who is a Partner at Bevan Brittan LLP and member of the Birmingham Law Society, said: “Although UK employers can encourage their workforce to get a vaccination, they cannot currently make it mandatory under UK law. Therefore, when hiring or firing, decisions cannot be made based on whether or not an individual has been vaccinated. It may be seen as ‘less risky’ for an employer to reject a job applicant if they cannot provide proof of vaccination as they will not have the service required to bring an unfair dismissal claim but the discrimination risk remains.”
Medical exemptions and genuine beliefs, such as veganism, are key reasons why individuals may refuse the vaccine. Ethical veganism, for example, could be considered a protected characteristic in the UK which would restrict employers from firing staff or rejecting applicants who haven’t got the jab on these grounds. Employers could also be accused of ageism if policies are introduced before the end of September 2021, as many of the younger generation have not had the opportunity to be ‘double-jabbed.’
Julian continued: “Under the Management of Health and Safety at Work Regulations 1999, employers must have arrangements in place to control health and safety risks, which involves undertaking rigorous risk assessments to identify threats in the workplace. With this in mind, workforce vaccination may be encouraged by employers as the best course of mitigation against the threat of a Covid-19 outbreak.”
Vaccination is currently compulsory for all care home workers in the UK, but this could extend to other jobs over time. There may be instances where a mandatory policy could be justified, such as where workers travel overseas or across borders, as this would require a ‘vaccine passport’ for entry.
“If further mandating is to go ahead, appropriate consultations must be made. When processes are reviewed this must be relayed to staff via a consultation process ahead of any changes regarding the workplace.” concluded Julian.