Vac to work, Vac to play

Co-authored by Jemille Gibson and Emma O'Connor

Is requiring a COVID vaccine to work or access services justified?

Since the first COVID-19 vaccine outside of trials was administered in the UK on 8 December 2020, the vaccination programme has continued at pace, with 15% of the UK population having received at least one dose as of 2 February 2021.

Many businesses have been considering whether they can take steps to compel, or strongly encourage, employees or potential customers to have the vaccine. Notable announcements have made by Pimlico Plumbers, who plan to require employees to have the vaccine in order to work, and Saga, who have announced that they will only permit customers who have had both doses of vaccine (currently all approved vaccines require two doses) to go on cruises with them.

Would requiring the vaccination, of staff and/or customers, be justified and what are the legal risks?

What happens now?

For some employees who travel or those who work in certain sectors, vaccinations are part of their job already.  Those who work aboard are used to complying with vaccination rules of the host country and some employers even offer travel jabs at their offices.  Whilst the idea of vaccination passports are being toyed with, the government themselves have not declared the Covid-19 vaccine mandatory even for frontline or care workers.  If we vaccinate to travel, should we Covid-19 vaccinate for work or play?

There is not yet universal access to the vaccine (especially for younger people)

At the time of writing, as the UK goes through its priority groups, we are not yet in a situation where everyone has had the opportunity to be vaccinated whether they wish to be or not. In particular, the priority groups are primarily set on the basis of age. A business introducing a mandatory vaccination policy today, would likely be unworkable and may also be liable for indirect discrimination on the basis of age, as most younger people simply do not have access to the vaccine and therefore cannot comply with the policy because of their age.

Could a blanket vaccination policy be indirectly discriminatory in other cases? 

Potentially yes. Even once there is universal access, there may be people who cannot take the vaccine for health or other reasons. For example those who are pregnant or who have other health conditions which make them unsuitable for the vaccine.  To require all staff have the vaccine – the “no job, no jab” approach – could lead to claims of indirect discrimination.  

There may be religious or philosophical reasons why a person considers they cannot take the vaccine. Although several representative religious groups have released statements endorsing the vaccine, a person with a specific belief against either this vaccine or any vaccines may be protected under the Equality Act if they can show their belief meets the standard of a protected philosophical belief.

Could the policy be justified?

Unlike direct discrimination, indirect discrimination does allow the employer to justify the blanket policy on objective grounds. However, is this always the case?  Whilst there is some argument that those working in specific sectors, for example, the care sector or those working with the clinically vulnerable, may well be able to justify on objectives grounds why introducing a mandatory vaccine policy is justifiable, those in other sectors may not have this justification. Also, vaccines do not negate the need to follow health and safety and Covid-19 health and safety recommendations.

What about incentivising those who have the vaccine? For example giving them greater access to clients as opposed to others not vaccinated.  Again, a risky policy to pursue and advice should be taken.

Also, it is right that all employees have to have the vaccine? Whilst it may be justifiable that certain “front line” staff are vaccinated in certain limited circumstances, what about those who do not have a client facing role? When employers could make testing available, is a compulsory vaccination a step too far?

What about those who refuse?

Would disciplinary or dismissal action against those who refuse be justified? Again, it may depend on the sector in which you work.  Certainly, taking disciplinary or dismissal action in all cases is risky.  It would be better to take a case by case approach to understand why a person will not or cannot comply with the policy.

Changing Contracts of Employment

Any vaccination compulsion would need careful employee consultation.  It could not be imposed unilaterally as a contractual change without this would be a breach of contract, allowing those with requisite service to resign and claim constructive unfair dismissal or less favourable treatment.  If there is a likelihood employees could lose their jobs for not signing a new employment contract, this could equate to a redundancy so again, take advice.

Employees could raise personal injury claims against you

Vaccines are still very new and as such, could a mandatory requirement for work result in the prospect of an employer being held liable for side effects?  This would need to be considered.  

It could be a breach of human rights

There are potential arguments that forcing employees to have a vaccine may breach their human rights, in particular, Article 8 of the European Convention on Human Rights, which protects the right to a private life, and has been interpreted widely so as to potentially cover being forced to undergo medical treatment, including vaccination.

It is notable that the UK appears to forbid itself from requiring vaccines by law under section 45E Public Health (Control of Disease) Act 1984, which forbids regulations requiring a person to undergo medical treatment, which includes vaccination.

Vaccination does not negate the COVID restrictions

As we have said, being vaccinated does not currently lead to persons being permitted to act outside the current restrictions, especially as there is so far only preliminary evidence about the vaccine’s effect on transmission, and most people have not had their second doses yet. Encouraging vaccinations does not mean employers can forget about their health and safety obligations to employees, visitors and customers. Might the use of testing make more sense and be less controversial?

Data Protection

Employers need to be mindful that any information about a person’s health or vaccination status would count as “special category” data under the UK GDPR and as such must be treated with care and sensitivity. Before instigating any policy on vaccinations, employers should consider how such data is going to be used, stored and who will have access to it.

So it sounds like this is not a good idea?

A blanket “no jab, no job” policy applying to employees is probably not a good idea on balance. However, there may be specific situations in which an employer could validly pursue such a policy, the obvious example being care homes, where a provider might justify requiring vaccination on the grounds of constant contact with vulnerable patients if other Covid prevention measures are not effective.

An employer who pursues a mandatory vaccine policy will need to be mindful of the considerations above. Allowances will be needed, informed by open discussions with employees and the availability of the vaccine to particular groups. Employers will also need to evidence that other, less draconian measures (e.g. social distancing, occupancy levels, etc.) are genuinely not sufficient to mitigate the risk to their employees and customers. Such employers will be in a much stronger position to defend a policy if challenged.

Perhaps a better route would be to offer advice to employees on the vaccine or, as being discussed in government, access to the vaccination at work when and if this is rolled out.  This could be part of a package of health and safety measures an employer can consider.  Also, encouraging employees to take the vaccine by allowing them paid time off; making sure that employees are self-isolating or taking care of themselves (and in turn others) could also be a better course.  

Even before Covid, we all know of our colleagues coming into the office when they are unwell or feeling pressured to be present rather than get well. Maybe, there will be a new approach to sickness where those who are unwell are encouraged not to come to work or better sick pay and help for those who are genuinely unwell.  

Moreover, what is the cost of implementing a vaccine policy? Is the employer proposing that if the vaccine becomes commercially available (and which vaccine?), that they will fund a vaccination process themselves? 

What about customers?

In respect of customers, as the right to access services as a customer is not absolute, there would seem to be more scope in requiring vaccines in order to access certain venues and services. This is the case especially if the business considers the only way it can feasibly operate without being a vector of infection is to require customers to be vaccinated.

Saga are in a reasonably safe position to do this, as they market specifically to older people who are likely in the priority groups who will have had the opportunity to be vaccinated by the summer. Other businesses with a more diverse client base, if denying services before a situation in which anyone who wants a vaccine can get one, are likely to be indirectly discriminating on the basis of age, and going forward, as with an employer, potentially on the basis of disability or philosophical belief. But what about other travel companies, could placing restrictions on those travellers from developing countries whose vaccine roll out is slower be fair or justified? 

There could be public relations issues for wanting to (or not) pursue such a policy.  Some businesses may find there is an appetite amongst their customer base for such safety, although we do not see this with other vaccines. 

Summary

The issue of compulsory vaccines in highly sensitive.  Businesses need to balance the profiles of their customers and employees with the risks of operating, and act in a way proportionate to their health and safety obligations, while respecting the personal choice of employees and customers. Time will tell in what direction matters proceed.