24 February 2021 #Employment
The debate on whether the workforce should be vaccinated continues at a pace in the press, where we have seen Barchester Healthcare join Pimlico Plumbers in considering all new recruits having to be vaccinated as a requirement of the role. Read more in our blog on rolling out vaccination programmes for employees.
Contractually, employers can draft such a clause into a contract of employment setting out that the employee must have been vaccinated. They may however face potential indirect discrimination claims from employees in certain groups who cannot be vaccinated. However, this group may be relatively small; those with allergies, certain disabilities and pregnant women. Employers could decide to make an exception for individuals in these groups.
The discrimination is indirect, as employers will not be refusing to employ people because of their protected characteristic, but because they cannot be vaccinated which is a consequence of their protected characteristic. For Charlie Mullins, the owner of Pimlico Plumbers, whose employees must enter people’s private homes to do their job, it may simply be that for his business the risk of employees and customers catching or transmitting Covid-19 far outweighs the risk of claims being brought in the tribunal.
It may also be a case of there being sufficient grounds to be able to justify the vaccine requirement and successfully defend claims on public health grounds; protecting customers and employees.
The strength of this defence may be sector specific. For example, a healthcare provider managing care homes, that requires new staff members to be vaccinated because they are in contact with elderly vulnerable adults may be more legitimate and integral to ensure safety in the role than an office worker for example, who is able to socially distance from colleagues and is not customer facing. For this reason, there are indications that vaccinations within the NHS and care sector may become mandatory.
For those that do not want to be vaccinated, the position is less clear, for example, those whose religious beliefs do not align with vaccination or those who simply do not want to have it. We will be tracking the employment tribunals closely to see whether such claims are brought and the decisions. There is significant case law on what can amount to a 'philosophical belief' warranting protection under the Equality Act. Those that are against vaccination may not meet the benchmark of a philosophical belief, but this will be for the tribunal to determine.
New recruit 'no jab no job' contracts should be distinguished from the requirement for existing staff members to be vaccinated. To insert such a clause into existing contracts will need consent and may also give rise to constructive dismissal claims for existing employees who cannot or will not be vaccinated. At the very least employers will need to start planning communications to persuade employees of the benefits of vaccinations, the H&S brand and values they hold important in this regard, how vaccination status may impact their activities, colleagues and supply chains, so that there is a clear understanding between the business and workforce should the company feel that it needs to take a harder line on vaccinations at a later point.
Further, subject to data protection safeguards, employers ought to be able to require staff to disclose their vaccine status, on the basis of an employer’s health and safety obligations as part of carrying out their risk assessments.
An Evolving Issue
Whilst the position on vaccinating the workforce is unclear, it is an issue that is here to stay. We heard from the Prime Minister on Monday that every adult in the UK will have been offered their first dose by July but following this there will be boosters each year, in order to combat variants.
We also heard that the Government is considering ‘Covid Status Certifications’ as part of its stage 3 review. This is essentially a 'vaccine passport' which could be required for individuals to enter pubs, clubs and other venues. This would suggest that both the public entering such venues and perhaps the employees that work there will need the 'certification'. We can see how this could quickly be required by other sectors, just as the requirement for mandatory mask wearing has spread from public transport to retail, and schools. Will offices be the likely next step?
We will continue to keep you updated as this issue evolves. For further information on vaccinating the workforce and the issue this presents, catch up on our latest webinar which covers the risks that employers should consider if making vaccinations a requirement of the role.