There has been much talk of late on the question of mandating tests and vaccinations for Covid-19, which has been reflected in the number of enquiries that we have received. To ensure that businesses can approach the subject with confidence, we have clarified the legal position for employers and provided some useful guidance below.
Interpreting the rules
Contrary to popular belief, it is unlawful to force people to undergo any medical treatment including testing and vaccination without informed consent from an individual. Under the provisions of schedule 21 of the Coronavirus Act 2020, the only exceptions to this are for public health officials, police, and immigration officers.
If you pay close attention to the language used by the Government, the operative word used when referring to testing and vaccinations is ‘offer’. This is key to understanding how far you can legally go when deciding how to safeguard your people at work.
On the surface, a reasonable employer may think it is perfectly sensible for their people to have a test and to take the vaccine whenever it becomes available to them. However, this assumption may not be appropriate for all people in all circumstances.
People who have medical conditions, religious views, philosophical beliefs, or are pregnant may be among those who do not want the vaccine or are advised not to have it. Therefore, having a blanket policy or employment directive mandating vaccination would be unlawful, as this could disproportionately disadvantage people in these groups.
Without an overriding legal basis for mandating vaccinations, it would be difficult to justify your approach if challenged in the employment tribunal. Furthermore, it is also highly unlikely that you would have the contractual right to mandate vaccinations. Even if you were to write a mandatory requirement into your contracts, this may well be unlawful for the reasons noted above, with people in protected groups being disadvantaged.
Health and safety considerations
Employers have a legal duty to safeguard the health and wellbeing of their people. Public service organisations, and those providing services to vulnerable people, have a duty to safeguard the health and wellbeing of their clients, customers, and service users. This has been important to those working in the health and social care sector over the last year.
In these areas, it is essential that health and safety risk assessments, control measures, and workplace management systems are updated to include all means of safeguarding the health and wellbeing of your people, clients, customers, and service users. One way to achieve this could be offering a vaccine to all those that provide personal services to vulnerable people. Whether someone takes you up on that offer should be a matter for them to decide and not something that may potentially put their job at risk. If your assessment is that there is no other way to effectively safeguard the people you provide services to, then the question of what happens next is vital.
Options for employers
If you cannot effectively deploy someone to perform the tasks that they are contracted to deliver, which they may have been doing for an extensive period, what can you deploy them to do?
Redeployment into an alternative role that does not require them to deliver personal services may be an option. However, the impact on the terms and conditions of employment may mean that the employee is disadvantaged by any such policy. Any reduction in pay and hours would be detrimental to them, potentially giving rise to an unfair (constructive) dismissal and discrimination claim. This would be dependent on the Equality Act 2010 and whether the individual’s basis for refusing the vaccine is because of a protected characteristic.
If you have no alternative redeployment options available, you may be considering a dismissal for some other substantial reason. Although this reason for dismissal may potentially be fair in law, the circumstances around it may not be. Again, it is important to note that any such dismissal may give rise to an unfair dismissal and discrimination claim, under similar terms to the above.
The position on ‘antivaxxers’
The question of what constitutes a strongly held personal belief is one that has several tests in law, although it is being challenged regularly. This has occurred most notably in cases relating to vegetarians, where the courts ruled that being a vegetarian was not a strongly held philosophical belief, whereas being vegan was. It is not yet clear whether being an ‘antivaxxer’ would be held as a philosophical belief in law.
It should be noted that an ‘antivaxxer’ is distinctively different from being vaccine hesitant, with the former being a widely published movement against vaccination, and the latter characterising those with concerns about the lack of vaccine testing, its efficacy, and unknown side effects.
Education is key
We all want the people we employ and those we serve to be safe and well. How we go about it, however, must be reasonable, proportionate, and in compliance with the law. The focus should be on education and helping people to make the right decision for them, while respecting their right to refuse on an informed and reasonable basis.