As you will no doubt have gathered, there is some conflict between the science and politics of vaccination. Within which there is the question; can employers require staff to be vaccinated with the threat of dismissal or suspension if they don’t?
Perhaps it is not surprising that spokespeople for the government are unable to give a straight answer when questioned on the legitimacy of such policies like the one that has apparently been adopted by Charlie Mullins of Pimlico Plumbers who has stated that his staff will be required to be vaccinated.
The government says that such coercion is not the way things are done in the UK and that the government prefers to persuade, rather than to force. Nadim Zahawi, the Minister for Vaccines (hopefully an ad hoc cabinet office) warned recently that a blanket rule to vaccinate could even be discriminatory to staff who refuse the vaccine! However, read on…
Any policy adopted by an employer has the potential to be discriminatory if it put workers with a protected characteristic at a ‘particular disadvantage’. For example, if a worker refused the jab on medical or religious grounds, he or she may be able to argue successfully that a policy which led to their dismissal or demotion (etc) breached their rights under the Equality Act. However if the policy could be justified and was considered reasonable, there would be a defence to the employer. The current debate makes reference to the question being asked about workers at care homes. While, globally, we remain in a pandemic at a time when residents of care homes appear to be at the highest of risk, such a policy might seem perfectly justifiable. In future, however, it may need to be reviewed.
If an employer selected a group of employees to be vaccinated because of their protected characteristic; perhaps an employer decided that all BAME workers had to be vaccinated, whereas other staff were not so required, that would be a clear act of direct discrimination. There is no defence for such a claim unless it was argued that the policy did not involve ‘less favourable treatment’. However, as detriment can arise from treatment in the form of stigma and other subjective factors arising from a situation, it would be a surprise if the employer were able to avoid liability for selecting groups of workers with protected characteristics to be vaccinated under threat of disciplinary action for non-compliance.
Even if claims for discrimination were not a risk, the fairness of one’s dismissal might be relevant if an employee were sacked for not cooperating with their employer’s plan to vaccinate the workforce (and creating an ultimatum may justify employees’ claims for constructive dismissal). Dismissal can only be fair if it is for a potentially fair reason; perhaps it would be ‘misconduct’ to refuse the order, or ‘some other substantial reason’ if by being unvaccinated the employee cannot fulfil their contractual obligations; both potentially fair reasons for dismissal. However the dismissal would still need to be fair and reasonable in the circumstances eg has the employee been vaccinated since, does the employee have a good reason to refuse the jab/did the employer have a good reason to demand it, could an unvaccinated employee be relocated somewhere with lower risks? etc.
If there is to be a conflict between an employer’s commercial aims and its Health and Safety obligations compared with workers’ personal rights, these will come to light sooner rather than later as the program being rolled out moves from the delivery of vaccines to a largely retired population, to an increasingly employed one.
Employers who insist their staff be vaccinated ought to be able to justify their position and, before implementing it, seek to discover if it would conflict with workers’ personal situations (particularly on medical or religious grounds). They should also consider contingencies for those staff that cannot, or will not vaccinate.
What is almost certain is that there will be no protection under the Equality Act for a worker or employee who does not agree to be vaccinated if their objection was because of mistrust of the science or for some other conspiratorial ground which surely cannot arise from one’s ‘protected characteristics’. Any decision to sack them, however, would still need to be justified if that’s the only reasonable alternative option on offer.
Jolyon is recognised by the Legal 500 as a “Leading Individual” and the TSP Employment team is recommended as “Tier 1”, one of the top three in Essex recommended by the Legal 500 in this practice area.
Jolyon can be contacted directly on 01206 217 024 or by email at jolyon.berry@tsplegal.com
