BALFOUR+MANSON: Can employers make the COVID-19 vaccine mandatory?03/11/2021

In the month that those in the gig economy celebrated a famous victory (Uber v Islam -Supreme Court), another battle is going on to establish whether or not employers can make their workforce take a vaccine against Covid-19. As the UK starts to emerge from furlough and lockdown, can bosses demand that staff are inoculated before they return to the office?

Pimlico Plumbers, a company made infamous from the case law in the area of zero hours contracts, recently released a statement that they would refuse to engage staff unless they consented to being vaccinated. Justice Minister, Robert Buckland, then added to the uncertainty by proclaiming that a “No jab, No Job “ policy may be legal, directly contradicting government advice that any attempt by employers to force the vaccine on employees would be discriminatory. Others have cited religious belief or health concerns in refusing to take the vaccine.

So what legal guidance is there for employers?

Well, the starting point is to see whether or not your existing Contracts of Employment contain any guidance. Certain sectors, such as social care and the medical profession, have mandatory requirements inserted into contractual terms that state you must have certain inoculations. Often in these areas the reasoning is that there is a genuine occupational requirement for such a measure, to protect patients and staff. It may be these existing situations that Mr Buckland was talking about.

However, most companies will not have thought about Covid, and reference in contracts to mandatory vaccination will be glaringly absent. While an Employer could attempt to take a public policy standpoint, and suggest it is for the health and safety of the majority of the workforce, they could be met with legal opposition. HR Directors are well aware of the difficulty in unilaterally changing contracts of employment, and you may be left in a situation having to dismiss and re-engage, an action that would no doubt cause office morale to dip.

Another issue if vaccination is enforced is the risk of discrimination claims being brought by those who may have one or more “protected characteristics”. While there has been quite a lot of commentary on refusal for religious grounds, research shows that there are few if any religious organisations who have an absolute ban on vaccinations, with Jehovah’s witnesses, for example , reversing their ban in the late 1950s. What is more likely to be used by staff is a philosophical belief against vaccination, with a test case in this area likely. With the courts previously finding environmental concerns and veganism to be legal “beliefs”, there is every chance this defence may be upheld.

We also think that age discrimination has been overlooked. A blanket policy in the company requiring vaccination to enter the office, may be capable of compliance by say the over 50’s, but not by younger members of staff who are still waiting for a jab. An indirect age discrimination claim could then follow, or possibly a claim to terminate the contract altogether on the grounds of Constructive Dismissal.

Having said that, a recent case in the East London Employment Tribunal, (namely D Kubilius v Kent Foods UK Ltd) has been one of the first to look at the competing beliefs of Freedom of Expression and Public Health. In this instance, the Tribunal came out in favour of the employer and health and safety considerations, upholding the dismissal of an employee who was sacked for refusing to wear a protective covering on site.

So while the war with Covid may be being won, the battle over the right of Employers to enforce the vaccination and related safety measures has only just started...

If you have any concerns about the issues covered in this article, please get in touch with a member of our employment team.