No jab, no job? Perhaps, but taking away a covid vaccine-refuser’s work is tricky, outside of Healthcare

As the covid-19 vaccination programme is being rolled out across the UK, there have been reports of some employers introducing mandatory vaccination policies, essentially requiring employees and new recruits to get the jab, or face losing their job.

Are such policies lawful? And, asks Hannah Morrison, associate at law firm Brabners, can these ‘no jab no job’ policies be applied to contractors, umbrella staff and agency workers?

Forced to get vaccinated for work: can employers insist you get jabbed?

There is currently no statutory right for employers to insist that employees are vaccinated in order to attend work. This applies equally to employees, umbrella and agency workers, and to independent contractors too.

Nevertheless, some employers are keen to ensure that any individuals who attend site, including limited company contractors and agency workers, are vaccinated. So what are the implications of a mandatory vaccination requirement?

Healthcare is the exception

There may be some limited circumstances where there is a fundamental business requirement for employees to be vaccinated. For example, it may be justifiable for certain employers in the healthcare sector to require their staff and/or contractors to be vaccinated because they will be in close proximity to patients, meaning that the risk of transmission and the impact of an outbreak is high.

That said, in most cases employers will struggle to justify compulsory vaccinations on health and safety grounds because it is not yet known whether the vaccine actually prevents or reduces transmission to others, meaning that social distancing and other measures (such as regular handwashing) should remain in place for the time being.

Tricky for employers to mandate the jab

On that basis, it is likely to be tricky for an employer to demand that its staff and/or contractors be vaccinated, especially where they work in a large office with space to social distance and where other health and safety measures, such as protective screens, are already in place.

On the flip-side, employers need to be alert to potentially damaging and costly legal claims if they insist on vaccinations as a requirement to attend work.

Five grounds the covid jab could be refused on

Some employees and contractors may refuse to be vaccinated based on specific grounds that are protected under the Equality Act 2010. For example:

• Individuals who have been advised or do not consider it safe to take the vaccine as a result of an underlying medical condition, which could amount to a disability. Claims of disability discrimination can be brought by employees and agency workers. In certain circumstances, discrimination claims can also be brought by individuals working via their own Personal Service Company (including when that PSC is supplied via an agency).
• Pregnant employees or employees trying to get pregnant may be reluctant to take the vaccine (or may have been advised against it). Requiring all employees and contractors to be vaccinated could therefore discriminate against this group.
• Individuals could potentially argue that their anti-vaccination beliefs amount to a protected philosophical belief under the Equality Act 2010, although this is yet to be tested in the Employment Tribunal.
• Although the vaccination programme is being rolled out at some pace, younger individuals have not yet been invited to take the vaccine, so an employer’s blanket vaccination policy could be indirectly discriminatory on the grounds of age.
• There is an argument that mandatory vaccinations could amount to a breach of Article 8 of the European Convention on Human Rights.

However, employers who do go as far as requiring their staff to be vaccinated may have a defence to claims of discrimination under the Equality Act 2010, if they can demonstrate that the vaccination requirement is a proportionate means of achieving a legitimate aim.

Yet the success of this defence will depend on how critical the vaccination of staff is to the operation of the business and the health and safety of others, rather than a mere preference by the employer.

What are contractors’ clients and engagers advised to do?

In light of the risks inherent in making vaccinations compulsory, Acas (the Advisory, Conciliation and Arbitration Service) advises that employers should support and encourage staff to get the vaccine -- without making it a requirement. Employers are advised to approach the issue sensitively and be alive to the various different (and legitimate) reasons which individuals may have for not wanting to get the vaccine.