28 Jun No jab, no job? Employment law considerations for COVID-19 vaccinations
The recent revelation that COVID-19 vaccinations would become mandatory for care home staff in England has sent shockwaves throughout the nation’s workforce.
More than 50,000 care home workers signed a petition against the divisive decision, citing their human right to exercise free will.
But what happens when personal beliefs cross over with employment law? Our Senior HR Consultant Tara Phillips shares her thoughts about the implications of mandatory COVID-19 vaccinations.
The law on COVID-19 vaccination and employment
At present, there is no legislation requiring employees to be vaccinated – which means that enforcing jabs could lead to certain claims and complaints from employees.
One of these claims is discrimination. This could be discrimination based on medical reasons – for example, a potential health risk from having the jab – or even personal beliefs.
Tara warns that the latter is a particularly grey area. “If an employee can demonstrate a strong belief against vaccinations, for example, proof that they have never been vaccinated against any diseases, they could have grounds to make a discrimination claim.”
What legal defence do employers have to enforce vaccinations?
While there is no specific legal guidance for COVID-19 vaccinations, employers who are particularly concerned could cite the Health and Safety at Work Act 1974.
Under the act, employers must “protect the health, safety and welfare at work of all their employees ‘so far as reasonably practicable’”. In a broader sense, this relates to risk assessments, but in the context of COVID-19, we could see this in practice with safeguards such as working from home or using PPE.
Employers cannot legally enforce a vaccination, but if they were to suggest it, they could cite this legislation.
Implementing a fair COVID-19 vaccination policy
If yours is a workplace that could be considered “high-risk”, for example, regularly dealing with vulnerable patients or working in crowded spaces, then you will need to deal with the matter sensitively.
In normal employment tribunal cases, the “burden of proof” lies with the employer – it is their responsibility to prove that they did not behave unfairly. However, in this context, both the employee and the employer would share aspects of the burden, as the employee needs to demonstrate their medical exemption or beliefs.
If an employee steadfastly refuses to be vaccinated without good reason, then an employer could potentially take disciplinary action – but it’s important to note that this would be the exception, not the rule.
Exploring the grey areas
Should the matter go to an employment tribunal, some examples of an employer’s “burden of proof” could be:
- Written risk assessments demonstrating potential transmission of COVID-19
- Written risk assessments addressing vulnerable individuals
- Provisions made (and subsequently refused) for alternatives such as remote or socially distanced working.
Conversely, an employee may cite examples such as:
- Medical exemptions such as history of adverse allergic reactions
- Religious exemptions under “moral or ethical beliefs”
- Strong proof of opposition towards vaccines as part of their personal beliefs, such as no previous history of vaccinations.
Indeed, the vaccine invariably throws up more questions than answers, as Tara points out. “When we look at the HSE guidelines around what is ‘reasonably practicable’, we need to consider the word ‘reasonable’. For example, is it reasonable for an employer to say, ‘no jab, no job’? Is it reasonable to ask them to work from home, and will this impact their mental health long-term?”
In employment law terms, we refer to this at the “band of reasonable responses” – a test measuring what the employer would have done against the employee’s personal circumstances. Tara cites the case of Tayeh vs Barchester Healthcare Limited, which ruled in a care home nurse’s favour.
Landmark cases of personal belief
While there is no known case of COVID-19 vaccines going to tribunal, Tara cites another “personal belief” case, in which the claimant won under the Equality Act 2010. In Casamitjana vs. The League Against Cruel Sports, Mr Jordi Casamitjana Costa claimed he was being discriminated against due to his belief in ethical veganism.
The judge reached an independent decision based on the “Grainger vs. Nicholson test” (a landmark case in proving that climate change beliefs constituted philosophical beliefs):
- The belief must be genuine
- It must be a belief, not merely an opinion based on the information available
- It must have a significant impact on human life and behaviour
- It must attain a certain level of cogency, seriousness, cohesion and importance
- It must be worthy of respect in a democratic society, not conflicting with the rights of others.
If an employee can reasonably prove “philosophical beliefs” based on these tests, then they may have grounds for discrimination.
What should I do as an employer?
Like many areas of employment law, it is advisable to have a policy in place. At this stage, a vaccine policy is not mandatory, but it could help to outline the steps taken to increase health and safety in the workplace.
Tara suggests that a broader COVID-19 policy could have inclusions for vaccinations, so that it is adaptable in line with changing legislation. An online policy rather than paper documents would work for the long term, for example.
This policy could also offer the following benefits:
- Supplementing other health and safety policies relating to COVID-19 such as handwashing or treating clinically vulnerable people.
- Showing regulators that there is an effective immunisation programme in place where needed.
- Setting out clear rules and guidance for employers and employees to follow, showing the employer has taken a reasonable approach.
No right or wrong?
Government guidance will doubtless change over the coming months, potentially extending to other industries such as the education sector. For this reason, it’s essential that employers take a people-first approach – weighing up the pros and cons of suggesting vaccinations based on their unique situation.
If you need more guidance on health and safety in the workplace, contact the Altum HR team today.