It is too soon to tell whether any employers will seriously contemplate imposing a “no jab no job policy” but for those who might even now be considering it, we have put together a list of some of the more serious considerations for employers.
The biggest legal hurdle is found in the Equality Act 2010 – Indirect Discrimination
Indirect discrimination occurs when a provision, criterion, or practice (“PCP”) which applies to all employees places some employees at a disadvantage due to a ‘protected characteristic’. It can be deemed unlawful unless the employer can show that, in the circumstances, it is justified which is also known as a ‘proportionate means of achieving a legitimate aim’.
The most likely ‘protected characteristics’ employers should have on their radar when considering whether to make vaccinations compulsory are:
- Age – older / younger workers may potentially have different attitudes towards vaccinations. Employers should be aware of the possibility of a vaccination requirement being regarded as biased. It is also worth bearing in mind that under the current vaccination roll out, younger workers are likely to be some of the last people to receive or be offered the vaccination later this year.
- Disability – if employees are classed as disabled under the Equality Act 2010, compulsory vaccinations could have an adverse impact on their health particularly if they have underlying health conditions or issues that are incompatible with the vaccine. As employers are under a duty to consider reasonable adjustments, forcing a disabled employee to have a vaccine could be in direct conflict with this duty.
- Pregnancy & maternity and sex – current government guidelines recommend that if you are pregnant, breast feeding or planning a pregnancy that you should not receive a vaccination.
- Religion or belief – people may object to the vaccine if it has ingredients that are contrary to their beliefs. In January 2020, in the case of Casamitjana v The League Against Cruel Sports the Employment Tribunal found that ethical veganism was a philosophical belief and therefore a ‘protected characteristic’. Whether strong personal views of an individual against vaccinations would amount to a belief qualifying for protection as a philosophical belief has not yet been tested. Whilst most religions do not prohibit the use of vaccinations, employers should be sensitive to individual practices and beliefs.
Constructive unfair dismissal or unfair dismissal
Even where the employee does not suffer from a protected characteristic there may also be cases where the policy of mandatory vaccination is unfair such that an employment tribunal may regard the decision to dismiss as being outside the band of reasonable responses making the decision to dismiss or the employee’s resignation in the face of the vaccine requirement, unfair.
What options do employers have?
If an employer is determined to require mandatory vaccinations, it will need to be able to show that in the circumstances its actions were justified as being a ‘proportionate means of achieving a legitimate aim’. There is no “one size fits all” test here and it will depend on the employer’s circumstances. For example, employers in the health care sector requiring employees to take the vaccine because refusal could put vulnerable people at risk, may be a reasonable instruction and a proportionate means of achieving a legitimate aim.
However, employers in other sectors such as professional services arguably do not have the same strong rationale for instructing staff to take the vaccine, particularly if employees can effectively work from home. This would make the proportionality aspect of the PCP harder to establish.
Proportionality factors employers need to consider include:
- A review of the company structure – what roles are there within the workplace? How are they performed? Are some positions more risky than others?
- If the requirement for vaccinations is going to be mandatory and an employee cannot safely do their job without it, are there any changes that can be made to their role to reduce the risk? Are there alternative roles either temporary or permanent that are suitable?
- Assessing the risks employees face e.g., are they exposed to or exposing other colleagues / service users to the risk of coronavirus?
- The possibility of employees continuing to work from home?
- Less invasive alternatives such as providing employees with regular home testing kits – i.e., is a suitable more proportionate alternative a “no test, no job” policy?
The list above is by no means comprehensive and given the invasive nature of the vaccination requirement, it is likely that the bar to justify imposing the “no jab no job policy”, will be very high.
In any event, the rollout programme is still underway with several millions of working adults yet to receive a first dose of the vaccine. The debate may therefore be slightly academic for now but who knows for the future?