At the time of writing over 4 million people have received the COVID-19 vaccine and it is set for widespread distribution in the UK during the remainder of 2021. This will be a relief to many employers, with the hope of getting back on track.
The original roll out plan for the vaccine started with care home residents and staff, frontline workers within health care and those aged over 80. It’s likely the vaccine will then be offered to other essential workers and private businesses. The government has announced this week that those in their 70’s and those who are clinically extremely vulnerable will be invited to be vaccinated too with the target of vaccinating everyone who is eligible by the end of September 2021.
This week in the press and on TV it has been reported that Pimlico Plumbers will mandate their staff to have the vaccine. They plan to change their employment contracts to state that new joiners must be immunised. It will rewrite its contracts with existing workers and employees as soon as is practical, depending on vaccine availability although they have stated they are willing to pay for vaccinations privately if available. The firm has about 350 plumbers working as contractors and about 120 employees. Mr Mullins said the firm was "not putting anyone under any pressure" to have the jab however, new starters who were not immunised would not be taken on.
However, in line with our previous blog this vaccination policy could be risky as currently there is no legal way for a company to force employees to take a vaccine. People who refuse vaccination and are dismissed may have grounds to make a legal claim for unfair dismissal (where they have over 2 years service).
Remember though that such claims are not open to workers and self-employed contractors.
Broadly, people can refuse a vaccination for legitimate reasons such as being pregnant or breastfeeding, for religious reasons, because of disability or allergy, or for ethical vegan reasons if the jab contains animal products.
The two vaccines approved for use in the UK, from Oxford-AstraZeneca and Pfizer/BioNTech, do not contain any components of animal origin, a Department for Health and Social Care spokesman confirmed.
Dismissal for employees with one or more of these protected characteristics could give rise to a discrimination claim.
There is also the consideration that people with strong anti-vaccination beliefs may be protected under equality law.
So, in summary:
Are vaccines mandatory?
Currently there are no mandatory vaccinations, and the government confirmed there are no current plans to do so. All vaccinations will be voluntary and must have prior consent from an adult or legal guardian.
Can I insist on my employees getting vaccinated?
No. For health and safety reasons an employer can ask an employee to receive the vaccination prior to attending their premises. This would be due to the concerns for other vulnerable or high-risk employees and customers. However, they cannot mandate that their employees get the vaccination.
If the employer can show that the introduction was a proportionate means to achieve a legitimate aim (health and safety of the public) they could have a substantial defence. The ultimate decision would be up to the Employment Tribunal.
If not all my employees will get the vaccination, how can I make sure my workplace is safe?
An alternative to requiring all your employees to get vaccinated is to continue to make sure your workplace is COVID Secure. Keep your COVID-19 Risk Assessment up to date, enforce social distancing, daily cleaning and providing hand sanitiser in communal areas. Regular communication with all employees is key in ensuring a safe working environment.
The vaccine has been reported to have passed all safety standards by the MHRA (Medicines and Healthcare products Regulatory Agency) which all drugs issued to the UK public have to pass in order to be prescribed. The vaccine is NOT compulsory, however, there will be some staff who are reluctant to have the vaccine because they are “vaccine hesitant” or those who refuse to have the vaccination as they are “anti-vaccine”.
Those who are “vaccine hesitant” could be deemed to have genuine and reasonable personal concerns about the vaccine which hopefully can be addressed by engaging, educating them and encouraging them to reconsider. Their concerns might be due to their disability or religious beliefs, for example.
We should also be mindful at this stage that although the vaccination covers the person who has had the vaccination, the protection does not necessarily extend to those around them. There is still a review as to whether the virus can still be transmitted following vaccination. Where colleagues ask if other employees have been vaccinated this information is confidential and must not be divulged.
If your employees visit clients premises and the client insists that you do not send unvaccinated employees then you will need to consider offering alternatives as there is the possibility that a dismissal for some other substantial reason (sometimes referred to as SOSR) may arise if no suitable alternative hours can be found for the employee and the client continues to refuse to permit entry. It is strongly urged that you seek advice from a HR professional before any such action is taken as SOSR dismissals are extremely rare and as such are considered high risk. In such cases you would need to be able to show that you have tried everything to convince the client to change their mind and looked for any suitable alternative work to avoid dismissal.
Employees who refuse to have the vaccine could be asked to make workplace adjustments to make sure they won’t come into contact with potentially vulnerable people. So long as these adjustments don’t negatively affect them more than others.
If you have any further questions or concerns, please do not hesitate to contact the Alcumus PSM HR team for assistance on 01484 439 930 or email [email protected]
Alcumus PSM (People & Safety Management) specialises in human resources (HR) and health and safety (H&S) consulting for small and medium-sized enterprises.
Written by Melanie Darlington, Senior HR Consultant