5 things to consider regarding Health & Safety, Discrimination, Employment and the Covid 19 Vaccine

10 February 2021

Health & Safety, Discrimination, and Employment Contracts,
Employees and the Covid 19 Jab

1. Individuals and the Vaccine.

The British Government cannot force individuals to receive the vaccination. It follows then that the chances of any contract of employment obliging an employing to do so being enforced are remote to say the least. Individuals are naturally being urged to have the jab but only will do if they want to. We do discuss the consequences of the employment issue a little later.

The majority of employers will wish that their employees receive this in order to mitigate the spread within their workforce, but the news often broadcasts examples of anti-vaxxers and conspiracy theorists.

2. What about the Health & Safety Laws? 

The various laws do require employers to take all reasonably practical precautions to reduce and mitigate risks in the workplace to the lowest level possible taking into account all relevant matters. This is prescribed under s2 of the Health & Safety at Work Act 1974.

This duty will not extend to breaching an individual’s freedom of choice whether or not to have the jab and that individual cannot be physically forced to receive it. Neither will employers be forced to go out and purchase stocks to help speed up the process for their work force.

Firms will and are encouraging their workforce to accept the offer of the jab in order to make their workplace a safer place and reduce that individual’s chance of getting infected. Obviously the other existing Covid secure practices and procedures measures should be maintained and other steps detailed in any Health & Safety Policy.

3. What about the Contract of Employment?

The employment contract is of course legally binding. A number of these contracts contain clauses compelling the employee to follow reasonable directions and instructions from the employer. Is requiring the employee to receive the jab a reasonable instruction?

This is very difficult to judge but at the same time crucially important. If the employer issues this instruction which is subsequently ignored by the employee or worker, is this a breach of contract justifying disciplinary action including dismissal? No doubt this will be tested in the near future in Industrial Tribunals as the World health Organisation has confirmed that roll out of the vaccination is likely to result in lower infections.

However, the jury seems to be out on this issue. There are a number of very important factors which must be taken into account when considering whether the employer’s request is reasonable. These include (in no particular order);

a) How close is the contact between the workforce?

b) How close is the contact between the employee and third-party customers/suppliers?

The employer is obliged to consider not only risk to the individual but also risk to other people. One might say that an individual is quite allowed to risk his or her own health but not that of the work colleagues or customers or pupils or whoever.

So, it seems quite reasonable for a hospital employer to instruct that its front-line workers receive the jab and that refusal to do so might lead into disciplinary proceedings. Is it reasonable to insist that a remote home worker does likewise? – Probably not - It must be a question of proportionality and degree of contact i.e. risk of infection.

Given that at the time of writing this article only 10% of the UK population have been inoculated, employers have some time to consider their stance. If the request is reasonable it is fair to ask the employees to confirm whether they have received the jab in order to keep records of compliance with the instruction. Such information will be medical data and therefore sensitive so be aware of your data protection duties!

4. Consider the Reason for Refusal.

If we all agree that in certain circumstances there can be a reasonable requirement, what about a reasonable refusal?

There may be valid reasons why certain people cannot have the jab. There may be genuine existing health conditions, allergies, needle fear, etc. Certainly, if a GP advises against having it, the employer must accept that and consider other ways to place that individual into a safe space if still working. 

The same might apply to pregnant women or people with a genuine disability. This might bring the laws pertaining to discrimination into play and the requirement of an employee to make reasonable adjustments. The NHS have said that pregnant ladies will not be routinely vaccinated. 

There may be distrust of the vaccination too. This distrust seems to be higher in non-White Groups. It is imperative that any employer decision to issue the instruction or enforce disobedience of it does not discriminate against certain groups. Such concerns should be discussed freely.

There are other groups too – such as Vegans. If animal products were used in the making of the vaccine, a true Vegan may be justified in its refusal. 

Any instruction to have the jab must be reasonable and generic and not targeted at certain groups based on sex, religion, age etc. as such will be protected under the Equality legislation.

There is a school of thought that "anti-vaxxers" and conspiracy theorists will not have the ability to refuse a reasonable instruction as they have the onus of proving that their beliefs are worthy of respect in a democratic society.

5. Can Dismissal be used as the Ultimate Penalty?

If the employer’s request is reasonable and the employee’s refusal is not justified, protected or reasonable, then an employer could probably lawfully dismiss that employee after a fair process.

The employer will need to consider alternatives first such as home working, or a role offering reduced contact.  There must be a warning mechanism and any process in the disciplinary procedure followed to the letter. It is unlikely that summary dismissal can be justified so dismissal would have to be on notice.

We stress that this is very much an untested area so any employers planning to discipline or dismiss should seek tailored appropriate legal advice.

John Davies
5th February 2021

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