September 2021 | Employment Law Services (ELS) LTD

There is currently no legislation that allows employers outside of the regulated care home sector in England to impose mandatory vaccination without an employee’s express consent. We explore the risks of a no jab, no job approach.

We previously looked at the different approaches being adopted by governments across the UK in relation to mandatory vaccines and vaccine passports and the potential implications this might have for employers and individuals. In this article we look at the risks of adopting a no jab, no job approach and explore the various challenges and implications for employers.

The Law on Mandatory Vaccinations

Care Quality Commission (CQC) regulated Care Workers in England will be required to be fully vaccinated from 11 November 2021 subject to limited exceptions:

Workers who should not be vaccinated for clinical reasons (regulation 5(b)(ii)).

Those providing emergency assistance (regulation 5(c)).

Those providing urgent maintenance in the care home (regulation 5(d)).

Members of the emergency services attending the care home in the execution of their duties (regulation 5(e)).

Those under the age of 18 (regulation 5(i)).

Those providing spiritual support for a resident following a bereavement (regulation 5(h)).

However, outside of the regulated care home sector in England, there is currently no legislative power for the UK government, or any of the devolved administrations, to mandate COVID-19 vaccinations across the board.

What Recognised Authorities Say

The official guidance from ACAS is that employers cannot force employees to be vaccinated and should instead support staff in getting the vaccine by encouraging them to do so by, for example, offering paid time off to attend vaccination appointments.

The CIPD’s position is that employers can’t force staff to have the vaccine, but they should encourage them to.

In April 2021, the EHRC warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone as well as the discrimination risks. There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual’s Article 8 right to privacy, particularly when there are other, less invasive ways to minimise the risk of transmission in the workplace. Employees who reject vaccination because of their religion or belief may also be able to rely on Article 9 (freedom of thought, conscience, and religion).

In its Universal Declaration on Bioethics and Human Rights, UNESCO requires “free and informed” consent to any medical intervention.

Mandatory COVID-19 Vaccine: Key Considerations for Employers

Employers outside of the regulated care home sector in England that are considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should carefully consider the following:

Vaccination is not suitable for everyone.

Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.

A mandatory vaccination requirement could indirectly discriminate against employees with certain protected characteristics and breach Article 8 and 9 of the ECHR.

Currently, private vaccination is not available. Individuals must wait their turn, in order of priority, to be offered vaccination. Allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees, although both direct and indirect age discrimination can be justified.

Employers may find it difficult to justify a mandatory vaccination requirement on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual contracting COVID-19, the extent to which vaccination reduces transmission is still under review and it is unknown how long the protection offered by vaccination will last. The current advice is clear that vaccination is not a substitute for workplace COVID-secure measures.

Imposing a mandatory vaccination requirement could result in negative publicity for the employer which could have a detrimental impact on business profitability, employee retention and recruitment.

There is a very small risk that vaccination could have long-term, adverse side effects for some individuals, which may concern a cautious employer. An employee who was compelled to receive the vaccine and who suffers an adverse reaction may attempt to bring personal injury proceedings against the employer.

Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.

The data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy and retaining that data.

Employers wishing to impose a mandatory vaccination requirement must:

Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the stringent COVID-secure guidelines already in place.

Consult with workplace representatives or trade unions.

Regularly review the vaccination requirement as the current mass vaccination programme progresses.

Mandatory COVID-19 Vaccinations: Implications for Employers

A mandatory vaccination requirement for employees or job applicants is likely to amount to a provision, criterion, or practice (PCP) that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic, contrary to section 19 of the Equality Act 2010 (EqA 2010).

An employer’s actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them contrary to section 13 of the EqA 2020.

It is unclear whether asking a candidate their vaccination status could be a prohibited health question in some circumstances under section 60 of the EqA 2010.

No Jab, No Job, No Defence

Despite there being no legislative power to mandate COVID-19 vaccinations for non-CQC regulated workers in England, an increasing number of employers across the UK operating outside of the regulated care home sector are considering mandating vaccines for employees working at their premises regardless of whether they are required to interact with the public or not and many have already introduced mandatory vaccines, citing their obligations under the Health and Safety Work etc Act 1974, which requires employers to ensure, so far as is reasonably practicable, the health, safety, and welfare of all their employees when at work and all members of the public who may attend their premises.

Employers imposing a ‘no jab, no job’ policy will likely rely on issuing what it believes is a “reasonable and lawful instruction” but we believe it is unlikely that it could successfully argue that it is ‘reasonable and lawful’ to require an employee to be vaccinated, not least because current advice is clear that vaccination is not a substitute for workplace COVID-secure measures and there is currently no legislation to mandate COVID-19 vaccines for frontline workers in the NHS.

Employers not confident that they can rely on a ‘reasonable and lawful instruction’ argument to impose mandatory vaccines might instead seek to amend the employment contract to introduce an express provision of the contract of employment requiring employees to be vaccinated. However, the way in which employers approach the task of changing terms and persuading employees to expressly agree to a change is highly significant. In the context of mandatory COVID vaccines, it is unlikely that an employer could rely on implied consent in circumstances where an employee refuses to sign a new contract, so employers will need to consult with employees and secure agreement to implement the change.

Proceed with Caution, Seek Advice

Imposing mandatory vaccination outside of the regulated care home sector in England without specific legislation and where there are effective and less discriminatory methods such as regular testing, home working, social distancing and providing PPE, to achieve the required business outcome is fraught with challenges and introducing disciplinary measures against employees who do not wish to take the vaccine is a high-risk approach which could give rise to claims of direct or indirect discrimination, breach of contract and unfair dismissal, including constructive dismissal.

Employers considering this approach are encouraged to carefully consider all their options and take appropriate advice.

Remedies for Employees Facing Mandatory Vaccination

Employees working outside of the regulated care home sector in England facing redeployment or losing their jobs because of their employer imposing a mandatory vaccine requirement may have legal remedies available to them, subject to the specific circumstances in their case.

Where an employer seeks to impose mandatory vaccination as a condition of continuing in employment without the express consent of the employee and where there are effective and less discriminatory methods such as regular testing, home working, social distancing and providing PPE, to achieve the required business outcome, this will be in breach of contract and the original terms of the contract will remain in place.

The employee can respond to the breach in the following ways:

Acquiesce (accept) the breach by simply carrying on working under the revised terms of employment which, in this context, would mean agreeing to get the vaccine.

Work under the new terms under protest and bring a claim for breach of contract. This is sometimes known as “standing and suing”. It should be noted that, in cases where the change imposed is substantial, the employer may be deemed to have dismissed the employee, so it is possible that an employee may also bring a claim for unfair dismissal, provided they have two or more years of continuous employment.

If the breach of contract is a fundamental breach going to the root of the contract, resign and bring a claim for constructive dismissal, again, provided they have two or more years of continuous employment.

If possible, refuse to work under the new terms.

Where the change amounts to a termination of the old employment contract and an introduction of a new employment contract, the employee can work under the new contract and claim to have been unfairly dismissed from the old one.

Covid-19 has created many challenges but one of the most contentious is the introduction of mandatory vaccines for Care Workers in England and vaccine passports in Scotland.

Scientists have told us that the COVD-19 vaccine is very effective at preventing serious ill health and hospitalisation but that it does not prevent somebody from contracting COVID or transmitting it. Why then has there been a push to introduce compulsory vaccinations and vaccine passports and what is the current position across the UK?

The Current Position on Mandatory Vaccines & Vaccine Passports

In England

On 22 July 2021 the UK Government passed new regulations which will amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (SI 2014/2936) to require workers deployed in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated unless they are exempt from 11 November 2021 and the UK Government intends to consult on whether to extend the requirement to workers in the health and social care sectors.

Apart from the new regulations requiring workers in Care Quality Commission (CQC) regulated care homes in England to be fully vaccinated, there is currently no legislative power for the UK government to mandate COVID-19 vaccination across the board and to do so would require further primary legislation.

On 13 September 2021 Health Secretary Sajid Javid confirmed that plans to introduce vaccine passports for access to nightclubs and large events in England will not go ahead.

In Scotland

On 9 September 2021 and with support from the Scottish Greens, the devolved SNP Administration in Scotland approved plans for vaccine passports for those seeking entry to nightclubs and large-scale events from 1 October 2021.

In Wales and Northern Ireland

At this time, the devolved administrations of Wales and Northern Ireland have not set out their positions in respect mandatory vaccines and/or vaccine passports.

Implications of Making COVID-19 Vaccines Compulsory

In its 2019-20 report on seasonal influenza vaccines, Public Health England’s reported that one in four healthcare workers did not get a flu vaccine and there are early indications that roughly the same proportion of people are wary of having COVID-19 jabs, a view that appears to be reflected in a recent YouGov poll which indicated that out of a total of 5,351 adults surveyed, a majority (44%) oppose compulsory vaccination compared with a minority (33%) that support it.

Despite public opinion and the fact there is currently no legislative power to mandate COVID-19 vaccination across the board in Scotland, Wales, Northern Ireland and in England (for Employers outside the care sector), many Employers across the UK are still considering making COVID-19 vaccines compulsory for those entering the workplace. However, those that choose to impose such a requirement may be exposing themselves to several issues, including:

Mandatory vaccination could be indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights.

Vaccination is not suitable for everyone.

A vaccination requirement may be difficult to justify on health and safety grounds because the current advice is that vaccination is not a substitute for workplace COVID-secure measures which must still be complied with.

Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.

Data protection implications inclusive of requiring employees to provide information on their vaccination status, verifying its accuracy, and retaining that data.

Notwithstanding the potential legal challenges Employers might face by making COVID-19 vaccines compulsory for those entering the workplace, Employers could face division among their workers and an exodus that could leave them short staffed and unable to fill vacancies.

Vaccine hesitancy exists for many reasons. Some people can’t have the vaccine for medical reasons and will likely fall under one of the exemptions, but others may be hesitant or refuse on religious or spiritual grounds or due to a fear of vaccinations generally. Employers considering making COVID-19 vaccines compulsory for those entering the workplace should consider ALL the facts very carefully before pressing ahead.

Acas advises that employers should support staff in getting the vaccine without making it a requirement, and encourage them to do so by, for example, offering paid time off to attend vaccination appointments.

Implications of Mandatory Vaccine Passports

Although the devolved Scottish Administration are alone in introducing vaccine passports for those seeking entry to nightclubs and large-scale events, the UK Government and devolved Administrations of Wales and Northern Ireland haven’t ruled this out, so similar issues to those associated with compulsory vaccines may arise not only Scotland but across the UK.

Some might argue that vaccine passports are an iron fist in a velvet glove approach to imposing mandatory vaccines by stealth and others might argue that such a scheme denies people the freedom of choice by limiting what they can do and where they can go without a vaccine passport but whatever way you look at it, the imposition of vaccine passports will potentially give rise to the same issues mandatory vaccines creates. Other issues which vaccine passports may give rise to include:

Will staff working at nightclubs and/or venues hosting large-scale events be required to have a vaccine passport? If they aren’t vaccinated, will they be denied work?
If they are denied work, who will pay them?

If the employer denies them work and/or pay won’t that be a breach of their contract of employment giving rise to claims for breach of contract, unfair dismissal and/or discrimination?

If ticket holders at large-scale events are denied access because they don’t have a vaccine passport, will they simply lose out or will they be entitled to a refund?

Who will pay the refund, the venue or the government? If it’s the venue, will it be entitled to compensation?

Are vaccine passports and requiring individuals to provide information on their vaccination status to stewards at nightclubs and large-scale events indirectly discriminatory against certain protected characteristics and a breach of Article 8 of the European Convention on Human Rights?

Avoiding a Winter of COVID Discontent

Forcing people to do something, either directly or indirectly, will almost always invoke strong feelings and will often also involve competing rights. For example, an individual’s right to choose verses another individual’s right to be safe in the workplace and the community.

However, when it comes to compulsory vaccines for those entering the workplace and mandatory vaccine passports for those wishing to enter nightclubs and/or large-scale events, whose rights should prevail?

Across the UK uptake of the COVID-19 vaccine has been high with 89% of the over 16’s having had the first does and 80% over 16’s having had the second dose. With booster doses becoming available to the over 50s and for those in the 12 to 15 age bracket as early as next week, we will likely see a sharp increase in voluntary vaccinations across the UK in the weeks ahead that will take us to a vaccination level high enough to keep everyone safe but without the need to push compulsory vaccination and vaccine passports further.

Month: September 2021

The Risks of a No Jab, No Job Approach