As the UK’s vaccination programme continues apace, many questions are arising over employers’ obligations and the rights of employees. Partner and head of Penningtons Manches Cooper’s employment team Paul Mander addresses some of the key arguments surrounding the workplace implications of the vaccine.
Much has been written about this issue so I will try to keep what is ultimately a personal assessment brief whilst also dealing with the main likely objections. I suspect/hope that, even though there are apparently 31 million people following anti-vax groups on Facebook and 5 million followers in the UK, the problem will not arise too much in practice.
The Government has chosen not to make the vaccine compulsory (it’s ‘not the way Boris works’ apparently) and most employers in the healthcare sector appear also to be relying on voluntary (but encouraged) rather than compulsory vaccination but the much-publicised Pimlico Plumbers ‘no jab no job’ policy has thrown the issue into the limelight.
It's well known that you can’t physically force someone to be injected as doing so would be an assault (which cannot, except in very limited circumstances, be consented to) but the issue is whether you can contractually require it and, if a person refuses, take any number of steps from freezing pay, sending them home or even dismissing them. I should also say up front that there is no prohibition on strongly urging people to have the vaccine but risk averse employers may not want to do so for fear of the risk that the vaccine may have as yet unknown consequences for the recipient, which could lead to personal injury claims in years to come.
What much of this will ultimately boil down to is whether the request/requirement is a reasonable instruction and the main objections to it being so, as well as the counter-arguments, are summarised briefly below:
You can’t force me to consent to an assault – the employer is not doing this though: it is just saying that, if you don’t have the vaccine you won’t be able to come to work and, if you can’t work properly at home, it will not be paying you.
It’s discriminatory to force me to have the jab – is it though? On what grounds? Despite its apparent prevalence, I think establishing anti-vax as a genuinely held philosophical belief worthy of respect in a democratic society will be very difficult: at the very least I’d expect the person to have to show that they don’t take any other vaccines either and that would just be for starters. From some of the lurid objections I have read it would also be a struggle to try and say that there is a coherent belief system behind it. There are some religions however where religious discrimination may be a possibility but the mainstream groups of the world’s major religions have in most cases accepted that vaccination is permissible (even in some cases where the gelatine used in many vaccines contains pork or beef products). I suspect that these cases will be rare and hard to prove: there may well end up being a tribunal where it is upheld but even that will be very fact-specific, as many of those cases are.
I take all of my other responsibilities seriously: I wash my hands, minimise leaving the house and observe social distancing - in my view, this is a little harder for the employer to deal with as a scrupulous anti-vaxxer may actually be less potentially dangerous than a cavalier pro-vaxxer.
When we were coming to work, you said social distancing etc was enough: surely it’s enough now too? - this is also a little harder for an employer to deal with. The main point is that the virus appears to be more easily spread now than before, hence the tougher lockdown. If a vaccine is available, that should also minimise risk even further especially in conjunction with social-distancing measures that will still be in place. This is, the employer would say, effectively an extension of the social distancing measures, albeit a more intrusive one.
The vaccine doesn’t work - there are of course many conspiracy theorists in many walks of life and I don’t think that will cut the mustard in this scenario: the evidence is too compelling. However, the evidence is that the vaccine lessens symptoms: it is as yet uncertain whether it minimises the chances of catching the virus and, perhaps more importantly, transmitting it. If that is the case, having the vaccination is more for the individual’s benefit than for the benefit of colleagues, customers and others more generally. I think this is a huge distinction. As well as this, there is of course the issue of the various different types of virus: if it keeps changing there is uncertainty as to whether the vaccine will continue to work. This could also lead to requirements for multiple vaccines or an annual vaccine, which is likely to be even less palatable to staff raising these arguments.
You aren’t being consistent - the vaccine will of course not be available to everyone at the same time. So, as an employer, are you going to let the very elderly who have been vaccinated back into work first? That could be tricky. Are you going to wait for everyone to be vaccinated? Fine, but it will be a long wait. If you aren’t, then there may well be a chance of the vaccinated and the unvaccinated sharing a workspace anyway and requiring a vaccination becomes less palatable.
I am nervous about potential side-effects - again, not an easy one to deal with. Pregnant women are only being offered the vaccine in exceptional cases as there is simply no research on the effects that it may have on them. The vaccine has been developed amazingly quickly and there are no long-term studies of its effects on the non-pregnant so, even if it is unlikely to have an effect, no-one can say for sure.
And the converse – I have been vaccinated and I don’t want to work with anyone who hasn’t been! This is bound to come up and the idea of a segregated workforce of potentially clean and potentially unclean is also unpalatable. In this scenario, and especially bearing in mind what I say above, I do think it would be a reasonable management instruction to require that person to come to work, even if they have to share with the unvaccinated.
There will of course be exceptional cases where it will be far clearer that you cannot force an employee to be vaccinated, and there are also some people who are not permitted to (or the Government recommends that they do not) have the vaccine. When I take all of the above together, I simply do not think that forcing anyone to have the vaccine is a reasonable instruction. That view may well change if the vaccine is seen to prevent infection and transmission but, without that huge leap, I believe encouragement rather than requirement is the preferred course.