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.
Care Quality Commission (CQC) regulated Care Workers in England will be required to be fully vaccinated from 11 November 2021 subject to limited exceptions:
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.
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.
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:
Employers wishing to impose a mandatory vaccination requirement must:
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.
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.
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.
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:
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 should seek advice at the earliest opportunity.
If you are experiencing challenges and require specialists advice, book a free consultation with our team of employment law specialists.