03/12/2020

Covid-19 vaccine: vaxxing question for employers

The fantastic news has been announced that a COVID-19 vaccine has been signed and approved by the Medicines and Healthcare Products Regulatory Agency. This means that eagerly anticipated delivery to NHS workers could start as early as next week, and makes the UK the first Western nation to be officially rolling out a Covid vaccination programme to its population. With many employers likely to be keen to encourage employees to get a vaccine and bring normality back, David Sheppard and Garyn Young answer the question on everybody’s lips: can anybody be forced to take it?

UK Government

Currently within the UK, there are no statutory provisions which would allow any UK government or devolved administration to compel individuals to become vaccinated. The Public Health (Control of Disease) Act 1984 actually provides for the opposite. Whilst it legislates to prevent, control and mitigate the spread of contamination or infections, it specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.

If any government of the UK were to legislate the right to insist on compulsory vaccination, it could give rise to numerous objections on the grounds of individual liberty and human rights. Article 8 of the European Convention of Human Rights provides protection to individuals for their right to a private and family life, their right to dignity, personal autonomy, and physical and psychological integrity.

In essence, this protects people from being interfered with physically or psychologically, which includes mandatory vaccinations. Any legislation compelling such vaccination would likely be deemed incompatible with Article 8, and would give legal recourse to individuals against public health authorities delivering any compulsory vaccination under the Human Rights Act 1998.

Employers – directly compel

As UK legislation currently stands, employers would be in a similar position to the UK Government. There is no statutory right available to employers which would mandate them to compel their employees to be vaccinated. In theory, if there is a widely drafted medical examinations clause in their contract of employment, it could be relied upon. However, this would still be fraught with risk, and consent is required for any medical intervention.

If employers were to compel their employees to be vaccinated, not only could it give rise to the human rights concerns highlighted above, but there could be criminal implications to these actions. Forcing anybody to receive a vaccine injection under duress, under UK law, could constitute an unlawful injury to another. Therefore, for anybody to become vaccinated, the individuals’ genuine and informed consent, and voluntary participation, is essential.

Within an employment context, it may also transpire that someone’s anti-vaccination position is not based on conspiracy theories and could amount to a protected philosophical belief under the Equality Act 2010, worthy of legal protection should an employer insist upon a vaccination as a condition of employment. If a fervent anti-vaxxer could establish that their belief was genuinely held and worthy of respect in a democratic society, then they may find that the employment tribunal has sympathy for their beliefs.

Anti-religious discrimination arguments could also be made. Many vaccinations, including the common flu jab, use gelatine, derived from pigs, which could cause issues for several groups, including followers of Islam and Judaism, and also vegans; all of whom are already protected under the Equality Act by precedent. Other religious beliefs object to any medical intervention whatsoever, although the position in relation to treatment for COVID-19 remains unclear.  The precise ingredients of the Pfizer vaccine and other Covid vaccines in the pipeline will therefore become relevant as to whether individuals can refuse to be vaccinated for protected belief grounds.

Employers – indirectly compel

Employers may decide to take indirect measures to pressurise vaccination of their employees, such as refusing employees’ entry to certain parts of the workplace or undertake certain roles if they cannot demonstrate that they’ve been vaccinated. Similarly, employers may be tempted to issue disciplinary action if an employee repeatedly refuses to be vaccinated. Any such measures should be considered very carefully before being implemented.

If an employee’s refusal to be vaccinated is intrinsic to their protected characteristic (e.g. a disability or a protected religious or philosophical belief), they may be able to issue a direct or indirect discrimination claim, and claim constructive unfair dismissal if they resign in protest, if they are disadvantaged at work as a result of such a workplace policy.

A better course of action for employers would be to help employees to make informed decisions regarding their vaccination and signposting them to the correct places with impartial factual information, should they want to be vaccinated or need further advice. In any event, employers should maintain their additional cleaning and social distancing measures for the time being, prioritising employee health and safety and basic hygiene regimes. A vaccination policy should not be used as a cost saving substitute for this while transmission of Covid is still at relatively high levels within society.

Working with vulnerable persons

This poses a slightly different question. Under the Health and Safety at Work Act 1974, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they are engaged with and will have close contact with clinically vulnerable members of the public or colleagues, or are particularly at risk themselves due to the nature of their work, such as enclosed spaces.

For example, it could be argued that requiring a care home employee to take a vaccination to enter the care home, and disciplining them if they refuse, is a reasonable instruction due to the high-risk nature of the work. Failure to adhere to this instruction could indeed create a health and safety risk, ultimately justifying dismissal or disciplinary action.

The reasonableness of such an instruction, and any sanction for failure to adhere to it, would need to be balanced against its proportionality relating to the risk posed and the amount the risk is reduced by vaccination. Whether the vaccine reduces transmission or whether it suppresses symptoms only would inform an employment tribunal as to the reasonableness and proportionality of the instruction in a high-risk workplace.

If it emerges that the effect of the vaccine is simply to suppress symptoms for that individual only, and any refusal to become vaccinated would have little impact beyond that individual’s health, it would be difficult to justify subjecting this person to an employment related detriment, as ultimately it is their human right not to take the vaccine and face the risk of becoming unwell due to Covid-19.

However, if the effect of the vaccine is to also suppress transmission over and above social distancing measures already in place in the workplace, then there could be a wider community benefit in requiring vaccination. It could then be possible to justify disciplining an employee where they refuse, or relocating them to lower risk roles, in terms of arguing for its reasonableness and proportionality.

It would still be a high threshold and one difficult to achieve though. If those at high risk to Covid who are vaccinated, such as care home residents, are successfully protected, and an employee’s individual choice not to vaccinate will not cause any material additional risk to those residents, it will become much more difficult to justify disciplinary action or other detrimental treatment.

Conclusion

There is still a huge amount of uncertainty surrounding the COVID-19 vaccine, as we are truly in unchartered territory that an effective vaccine has been developed in the middle of a pandemic. This brings medical ethics questions to the workplace, and it is still unknown if the vaccine will reduce transmission of the virus, or only suppresses symptoms.

What is clear though, is that currently there is no statutory provision allowing the Government or employers to lawfully compel employees to take the vaccine, or justifying subjecting them to a detriment if they refuse – except for for, in theory, very exceptional circumstances, such as those working on the ‘front line’ and those who have close and prolonged contact with individuals who have extreme vulnerability to Covid-19, if it is shown that the vaccine can reduce transmission as well as symptoms.

The safest position for most employers and workplaces to hold is to allow personal choice, provide education and factual information (similar to the 1980s AIDs campaigns), and ensure that common sense prevails. They should also make sure that anti-vax viewpoints are respected, particularly if they are based on protected beliefs.

One thing is sure: social distancing measures at work are unlikely to disappear in 2021, until Covid transmission is kept for prolonged periods at very low levels following the vaccination programme. We hope normality will return soon, but it’s still going to be different.