Can all employers make their staff get vaccinated?
No jab-No job policies are becoming increasingly common following the introduction of mandatory Covid vaccines for healthcare workers in England. But, there are several factors employers must consider if they want to make vaccination a contractual job requirement. First, to minimise the risks of successful unfair dismissal, constructive dismissal or discrimination claims, they must be able to show that the implementation of such a rule is a proportionate means of achieving a legitimate aim. Essentially, this means that it is a reasonable way of reaching a reasonable goal.
Under the Health and Safety at Work Act 1974, employers have a duty to take all reasonably practical steps to ensure the health, safety and welfare of their staff. However, it’s not likely that this will include, for all employers, the requirement for its employees to be vaccinated. The situation is different for affected care settings, whose workers are legally mandated to get the Covid vaccine (unless an exemption applies) to continue in their roles. Forcing employees in all other sectors to have a vaccine may trigger human rights implications, as well as risks from an employment rights perspective.
An employer’s argument for making Covid vaccinations a contractual requirement can be strengthened by an existing clause within the employment contract outlining that medical intervention is to be administered where necessary, to protect the employee’s health and that of those they come into contact with at work. However, a clause of this nature is rare. Further arguments include considering the industry within which the business operates; in particular, where close contact with others is intrinsic to the role and, as such, creates a high-risk environment. But, employers who are able to implement alternative ways to reduce the risk of exposure, for example, by maintaining social distancing and mask wearing, may not be in a strong position to require employees to have the vaccine. This will be of significant importance to organisations who have not had any Covid-outbreak issues, as employees may be able to argue that other measures are providing adequate protection, so vaccination is not reasonable.
Some employees may also have valid grounds for refusing the vaccine, so could have legal protection if any action is taken against them. For example, those with underlying health issues or pregnant employees may be eligible for a medical exemption. Other employees may refuse the vaccine due to their religion or belief. It is important, therefore, to fully understand why the employee is refusing and allow reasonable adjustments where appropriate.
In situations where employers have satisfied that the request is reasonable, and can clearly evidence this, they can begin the process of implementing such requirements. Organisations must remember that the introduction of a contractual vaccine clause will be a change to employees’ existing terms and conditions, so agreement from their workforce is needed. This can be done by consulting with employees, to explain the proposed changes, the reasons for them and the timeframes for implementation. Employees should be given the opportunity to ask questions and raise concerns throughout this process. Where the changes will affect 20 or more individuals, collective consultation rules may apply.
Once a full consultation process has been completed, and adjustments have been made for those with reasonable grounds for refusing vaccination, action can be taken against those who cannot provide the necessary evidence. Employers should always first evaluate whether there are any alternative roles the person can be redeployed to. If there are none, employers may be able to move forwards with a dismissal under Some Other Substantial Reason (SOSR). It’s important that employers keep a detailed record of all discussions and documentation utilised throughout the process, as this may later be used as evidence should claims arise.
Ultimately, it is possible to introduce mandatory vaccination as a contractual requirement. However, organisations must make sure that this is a reasonable request and follow a full and fair consultation process before considering redeployment or dismissal.