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A legal guide to the pitfalls of making covid vaccines mandatory in the workplace

Julie Jones, Starford - Legal HR

With all adults in England likely to be offered the vaccine by autumn (and possibly earlier), but not everyone opting to take it up, what employers require of their workers in this respect is going to be a key issue.

The vaccine itself is non-mandatory and ACAS has issued clear guidance that employers should support staff in getting the vaccine, but cannot force them to be vaccinated. However, in a recent survey 23% of employers said that they do intend to require their staff to be vaccinated.

Some sectors and roles may be able to justify such a stance (e.g. in caring roles for vulnerable individuals or roles where international travel is necessary), however, ACAS still advises caution even in those circumstances.
If an employee refuses to take the vaccine, employers should listen to the reasons for their refusal. If the reasons are unreasonable, the employer may be able to take disciplinary action. Relevant factors will include:

– Is there a vaccine policy in place (preferably arrived at in consultation with staff or unions)?
-Is the vaccine necessary to the role?
-Is the individual’s reason potentially protected under the Equality Act 2010?

LEGAL PITFALLS
• Anyone dismissed for refusing to have a vaccine may be able to claim unfair dismissal if they have two years’ continuous employment.

• They may also be able to claim discrimination, for example in the following circumstances:

(i) Disability discrimination – if they have medical reasons for the refusal such a suppressed immune system or certain allergies as a result of a medical condition that meets the statutory test of a disability

(ii) Pregnancy discrimination – PHE advises that pregnant women or those who plan a pregnancy within the next three months of the first dose should not take the vaccine

(iii) Religious or philosophical belief discrimination – whilst it is unlikely based on case law to date that those refusing the vaccine due to “conspiracy theory” type reasons would be a protected, case law has established that ethical veganism, for example, is protected. Therefore those who are concerned about ingredients or testing on animals may be protected. Similarly, members of certain faiths may have concerns around certain ingredients or how the vaccine has been tested or developed and could be protected under the EqA.

(iv) Age discrimination – younger workers may be more likely to decline the vaccine for concerns about, for example, fertility or longer-term effects that might not concern older workers to the same extent.

(v) Race discrimination – studies show that those from BAME backgrounds are more likely to decline the vaccine and so there may be issues of race or ethnic or national origins discrimination.

Employers may have a defence, in cases of indirect discrimination, if they can show that requiring staff to be vaccinated is a proportionate means of achieving a legitimate aim e.g. protecting the health and safety of staff and customers. Proportionality would come down to questions such as what other safety measures the employer could reasonably take and how effective they would be likely to be within that particular workplace.
In addition there is the small risk that if the employer requires an individual to have a vaccine who then has an adverse reaction to that vaccine, that individual could potentially even bring a personal injury claim against their employer

WORKERS REFUSING TO WORK WITH THE UNVACCINATED
Another angle to consider is the concerns of the vaccinated worker not wanting to work with unvaccinated colleagues. Employees who raise concerns about health and safety or from staying away from a dangerous workplace have special protections e.g. against automatic unfair dismissal and potentially under whistleblowing laws. So balancing these against the rights of those to refuse the vaccine on legitimate grounds could cause significant issues for employers.

The answer could lie in what other Covid-19 measures organisations have in place in their workplaces to reduce risks to staff and therefore it seems likely that, even with the vaccine, employers are going to have to continue to implement other Covid-19 secure measures for the foreseeable future. Some employers have even made the suggestion that they may have to segregate vaccinated workers from the unvaccinated. This is clearly unappealing for so many reasons, not least staff morale.

Finally, there are going to be data protection issues for employers in this respect regarding what information they can require their staff to disclose, as well as how is that information stored and used.

SIX PRACTICAL STEPS
1. Start thinking about this issue now in relation to the specifics of your workplace

2. Consult with staff or unions regarding your organisation’s position on vaccines

3. Be prepared to have open and at times, sensitive, discussions with staff about their concerns

4. Consider educating staff on any concerns that they may have with a view to achieving voluntary vaccination within your workforce

5. Treat any objections very much on a case by case basis based on the particular role and the individual

6. Consider how, if at all, the vaccine will impact your other Covid-secure measures i.e. with a less than 100% efficacy and its impact on transmission rates still unclear, most employers will still be retaining a number of other Covid-19 safety measures for some time to come.

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