All Reasonable Steps Defence in Discrimination Claims – A Stark Warning for Employers

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.

The harassment case of Allay (UK) Ltd v Mr S Gehlen is a stark warning for employers relying solely on internal policies and staff training that is rarely updated or rolled out.

Employment Law - What Do You Know About It?

In the harassment case of Allay (UK) Ltd v Mr S Gehlen, the Employment Tribunal (ET)assessed that Allay’s training was ineffective as it had not prepared or equipped the staff to take appropriate action and consequently rejected Allay’s all reasonable steps defence.

What is Harassment?

A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

Violating B’s dignity.
Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(Section 26(1), Equality Act 2010 (EqA 2010).)

The relevant protected characteristics include race (section 26(5)).

What is an All-Reasonable Steps Defence?

An employer can defend a harassment claim if it is able to demonstrate that it took all reasonable steps to prevent employees doing the discriminatory (or similar) act in question.

Section 109(4) of the EqA 2010 states:

“In proceedings against A’s employer (B) in respect of anything alleged to have been done by A in the course of A’s employment it is a defence for B to show that B took all reasonable steps to prevent A-

(a) from doing that thing, or

(b) from doing anything of that description.”

The Facts in This Case

Mr Gehlen, (of Indian origin), was employed as a senior data analyst by Allay (UK) Ltd from 3 October 2016 until his dismissal on 15 September 2017 on grounds of poor performance. After his dismissal Mr Gehlen complained to his employer that he had been subjected to racial harassment by a fellow employee, Mr Pearson, during his employment. Allay (UK) Ltd undertook an investigation which determined that Mr Pearson had made racist comments on a regular basis, which he characterised as “racial banter”.

Mr Gehlen subsequently brought claims in the employment tribunal for direct race discrimination and harassment related to race.

The Employment Tribunal (ET) Decision

The Tribunal rejected Allay’s defence and upheld Mr Gehlen’s complaint of racial harassment, noting in particular that Allay’s equality and diversity training had become ‘stale’ and ‘ineffective’ and the fact that Allay’s managers lacked sufficient knowledge and confidence in responding to or reporting the harassment they had witnessed. Allay appealed the decision.

The Employment Appeal Tribunal (EAT) Decision

The Employment Appeal Tribunal (EAT) upheld the decision of the Employment Tribunal and rejected Allay’s ‘all reasonable steps defence’ to the claim of racial harassment. The EAT held that the Tribunal was entitled to conclude that the training Allay had provided to its staff, including Mr Pearson and the managers who failed to report the issue to HR, had become stale and required refreshing.

A Stark Warning for Employers

This case demonstrates the high threshold that needs to be satisfied in order to rely upon an ‘all reasonable steps’ defence and should act as a warning to employers that they can’t simply rely on internal equality and diversity and bullying and harassment policies to avoid costly Employment Tribunal claims.

HR policies and training requirements should be reviewed regularly and training in support of certain HR polices, like equality & diversity and bullying and harassment policies, should be mandatory for all staff and refresher training should be provided at regular intervals and at least annually.

A Cost-Effective Training Solution for Employers

Employees are increasingly aware of their rights and the rules for employers which combined with the ever-growing complexity of legislation makes it increasingly risky and challenging for employers to be compliant. The cost of getting it wrong can be high, regardless of the size of your business, but can be easily avoided

With our extensive range of fully accredited e-Learning courses, including courses on equality, diversity and discrimination as well as anti-harassment, Employment Law Services (ELS) LTD provides employers with a cost-effective training solution to ensure legal compliance and the duty of care to its employees.

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