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A legal minefield awaits employers considering Covid-19 jab programmes, argue Jules Quinn and Marie Hoolihan
The UK government has undoubtedly established vaccines as the 'way out' of the current Covid-19 restrictions. With the grim, ever-rising daily death tolls and the devastating economic, social and emotional impact of lockdowns, there is an understandable desire to get as many people vaccinated, and protected, as possible in order to finally open-up society for good.
However, with such prominence given to the vaccines, this has resulted in an increasingly noticeable call for jabs to be made mandatory. Following confirmation that vaccines will not be compulsory at a national level, employers have been left wondering whether they can (or should) make it compulsory for their workforce. A mandatory jabs policy may appear to be immaterial and a safe way of reintroducing staff to the workplace, but it could cause legal problems on many different levels.
Vax a nation
On a general level, a mandatory government-led mass vaccination programme cannot be undertaken. UK Prime Minister Boris Johnson recently stated that compulsion is “not part of our culture”. That is not to say there has not been compulsory vaccination in the UK before. Between 1853 and 1873, Parliament passed a series of Acts that made the smallpox vaccination compulsory for children during their first three months of life. That is a very different proposition to mandating an entire population to get injected.
The present rules are clear – consent and voluntary participation are required. In England and Wales, the Public Health (Control of Disease) Act 1984 (Public Health Act) provides the government with powers to prevent, control or mitigate the spread of an infection. The legislation specifically provides that individuals must not be required to undergo any mandatory “medical treatment”, which includes vaccination. The Coronavirus Act 2020 recently extended this prohibition in Scotland and Northern Ireland.
There have been recent examples of private companies, including travel providers, saying Covid-19 vaccinations would be required to use their services. The ante was upped in mid-January by Pimlico Plumbers – no strangers to controversy – announcing a “no jab, no job” policy with the introduction of a contractual requirement for staff to be vaccinated.
Removing the needle
There may be some very narrow areas where mandating vaccination would seem logical, such as health workers or those in care homes but there is a myriad of practical complications regarding a mandatory Covid-19 vaccination policy. There are still many unanswered questions on the vaccine, whether that is about efficacy, seasonality, the rollout, when private entities can purchase doses, how much will it cost, how many jabs, how often, and so on.
The fact remains no one can be compelled to have a vaccination in the UK, so an employer’s requirement for staff to be vaccinated would likely not be considered a 'reasonable instruction' or a lawful basis for withholding pay or dismissing an employee. Imposing such a requirement would potentially be a breach of the implied term of trust and confidence, enabling an employee to resign and claim constructive dismissal. If an employee was successful in a constructive unfair dismissal claim, they would be entitled to an unfair dismissal award of a few thousand pounds (calculated on age and length of service) and compensation for loss of earnings of up to £88,519 (or 52 weeks gross salary – whichever is the lower).
Employees also have personal considerations that impact on receiving a vaccine. There are a number of potential discrimination issues if the reason for refusal related to a protected characteristic under the Equality Act 2010. For example, if the refusal to be vaccinated was related to a disability or a religious reason, the employee could bring a discrimination claim with uncapped loss of earnings and a sum of injury to feelings. Pregnant employees are another protected group who may be concerned about a vaccination.
As of late January, pregnant women are presently not recommended to receive the jab because the vaccines have not yet been tested in pregnancy. The optics of an employer withholding pay or trying to dismiss pregnant women would be deeply unsettling. And costly. It is also possible employees could claim that anti-vaxxer beliefs amounted to a protected philosophical belief (although there is a large question mark over whether they could meet the legal tests).
A policy which allowed voluntarily vaccinated employees back into the workplace while others remained at home (on full pay) could potentially be justifiable in some circumstances, but would not be risk free. Although employees may be happy to remain working remotely for the time being, they could challenge the policy if they felt it caused them a disadvantage, such as being overlooked for opportunities or being detrimental to their mental health.
There are further considerations on data protection, with employers being reported to the Information Commissioner’s Office regarding an unreasonable and unnecessary infringement on their privacy regarding their sensitive medical information. An employee could also challenge this under human rights laws as being in breach of the “absolute right” to choose whether to consent to medical treatment. Any requirement to be vaccinated could also be in breach of Article 8 of the European Convention of Human Rights (ECHR) (the right to respect for one’s privacy and family life and Article 9 (the right to freedom of thought, conscience and religion).
A dose of reality
Employers should ensure they take a holistic perspective on the pros and cons of any Covis-19 vaccination programme. The immediate health benefit may, on the face of it, appear to be the biggest priority but there are many nuances that need to be considered. A rushed or rash response, especially a heavy-handed one, may result in different problems further down the line.
Jules Quinn is a partner in the trial and global disputes team and Marie Hoolihan is an associate in the labour and employment practice at King & Spalding's London office
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