Most employers are aware that they face potential claims of unfair dismissal from employees with over 2 years’ service, if they dismiss them because they are not vaccinated, writes Emma Clark.
Potentially some employees may argue their dismissal (or any disciplinary process) is discriminatory against them on a number of different grounds, which could include medical or disability, their belief or their age.
At present, the UK has mandated that frontline workers in the health and social care sectors will need to be fully vaccinated as a condition of deployment.
Care workers were required to be fully vaccinated by November 2021, whilst frontline NHS staff workers must be vaccinated from April 2022.
This requirement has been challenged. Last month two care workers lost their judicial review, in which they challenged the Government’s legal requirement for care workers to be vaccinated.
The court considered the requirement to be lawful, to protect the elderly residents and held that any discriminatory impact on workers could be justified.
Vaccinations across the globe
In Europe, Austria has mandated that their population is vaccinated from February 2022. Greece has also announced mandatory jabs for over 60s with their Prime Minister stating ‘it is not a punishment…it is a health fee’.
Germany may also follow shortly. Further afield, Indonesia and Turkmenistan have already made Covid-19 vaccines mandatory amongst its population.
Perhaps the most interesting decision on this debate was from the European Court Human Rights’ decision in Spring 2021.
The court held that the Czech Republic’s compulsory vaccination against nine childhood diseases was lawful. This was not least because the objective was to protect every child against the serious diseases either through vaccination or herd immunity. Ultimately, it was due to a need to protect public health.
The UK court found this decision to be persuasive in the care home case.
If we consider these decisions in the context of increasing pressure from US parent companies to mandate vaccination amongst their staff in the UK, it is clear that the stable door has been unbolted and heated debate will ensue.
What is the legal position?
Ultimately it is a balancing act for employers.
They must take reasonable steps under the Health and Safety at Work Act 1974 to reduce workplace risks. Employers can argue that the scientific evidence seems to state that vaccination in the workforce does reduce the Covid-19 risks.
There are also considerable challenges with the processing and storing of ‘special category’ data relating to an employee’s vaccination status under the data protection legislation.
All of these issues need careful consideration.
What can an employer do?
At this point, the best approach is to educate the workforce on the benefits of vaccination – this may include providing them with access to medical professionals if they have technical questions that need answering.
If employers want to consider mandatory vaccination for all but the medically exempt, the starting point would be a thorough risk assessment. A vaccination policy setting out the employer’s rationale could then follow.
They may also consider offering incentives (balancing the impact on those that cannot be vaccinated and how best to compensate them). This should be alongside staff consultation.
It is possible that, depending on their scope, the new Covid-19 passports may result in more of the workforce becoming vaccinated rather than find themselves excluded from social events.
We may also find that UK employers are encouraged by the above cases and start to consider if and how it may be able to require its work force to be vaccinated.
Emma Clark, employment law partner at Keystone Law
Emma Clark is an employment lawyer at Keystone Law who has extensive expertise in employment litigation, corporate transactions, and advisory work. Emma has advised organisations and senior individuals for over 20 years and works with clients across a range of sectors and jurisdictions.
Her employment specialisms include advising on strategic HR projects, redundancy-related issues, employment contracts and handbooks, sensitive terminations among others.
Emma delivers tailored training sessions to organisations on the menopause, covering both legal and practical matters. They are delivered with qualified coaches and psychologists who view the transition period through a positive lens for the workforce.