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Return to work -what if Employees refuse vaccination?

29th January 2021

Employers are legally obliged to operate a safe system of work – but what to do if staff refuse vaccination?

The disruption to life, and working life, over the last year has been both momentous and entirely unexpected. Notwithstanding the emergence of new, mutated, variants of the Covid 19 virus, the emergence of vaccines gives the hope of controlling the impact of this novel disease, and a return to something approximating to ‘normal’ life. That, of course, depends upon the development of Herd Immunity to a level that transmission is a rare occurrence. This, of course, is massively accelerated by vaccination, which is hopefully the process upon which we are now embarking.

But what happens when significant numbers refuse vaccination?

In Europe in the twenty first century we have (or had, until 2020) a blasé attitude to disease; it is (was) something that happened to other people in countries far away in both time and distance. Except…previously ‘eradicated’ conditions such as TB and Measles have returned to the UK, a rise fuelled by mutation, refusal to vaccinate and immigration of infected individuals. None of this would matter, but a casual attitude to lethal diseases, inculcated by a hollow sense of safety, has led to a rapid drop off in vaccination. This is now becoming more apparent with Covid 19 and a bizarre, expressed refusal to accept vaccination, sometimes on religious/cultural grounds, sometimes as a result of nonsensical ‘anti-vax’ conspiracy theories. This is not the forum to deal with the cause; here we need to look at the effect in the sphere of employment.

Individuals are free to refuse to be vaccinated, and there is no intention to legislate for this. It is difficult to see how any democratic government could, in any event, force vaccination. Without consent ‘the merest touching is assault’, a truth in English Law dating from the sixteenth century and reiterated many times since. However, employers are obligated to take reasonable steps to reduce risks and provide a safe environment for their employees. This, of course, includes encouraging staff to be vaccinated. If they refuse? This may well be considered a reasonable subject for disciplinary action to force an individual to accept the vaccine. Obviously, the end point of all disciplinary procedures is dismissal. Could dismissal be considered reasonable? In the language of the Employment Tribunal, could dismissal for refusal to vaccinate potentially fall within the band of reasonable responses for an employer? If not, then a Tribunal might conclude that such a dismissal would be unfair. In addition, there is a possibility that a claim could arise earlier in terms of perceived constructive dismissal, and/or discrimination.

Unfair Dismissal

The starting point would be the need for the employee to have accrued over two years continuous service and hence the right to claim unfair dismissal. If not applicable, then no claim can arise under this head. The argument would be that such a demand from an employer was unreasonable. It is easy to see, in today’s world, that there are powerful arguments against this. As one of the potentially fair reasons for dismissal is ‘Some Other Substantial Reason’ (‘SOSR’) then such an argument, with a backdrop of 100,000 deaths does not seem unreasonable. This would seem logical in terms of both Health and Safety and business recovery. It is difficult to envisage a reasonable reason for refusal to vaccinate. However, this must be seen against the backdrop of the Human Rights Act (‘HRA’) and respect for Private and Family life. Public safety would be the counterargument. This balance has not been tested in the Courts but, should a first instance decision go in favour of a disgruntled employee, it is frankly much easier to conceive of an appeal based on the public safety argument rather than the reverse. This argument would be even more powerful if the individual in question was in a safety critical role (public-facing; medical or care home employee, for example). Of course, even in such cases the employer must operate (as always) a scrupulously fair procedure.

Discrimination

Discrimination is always a red flag for employers, whether sex, race or any other. It is generally feared more than most claims for the potential of reputational damage as well as any potential award. The good news, therefore, is that refusal to receive vaccination cannot, of itself, be a protected characteristic and so is not capable of leading to a valid claim. However, an employee may nevertheless attempt to associate their behaviour with a disability or philosophical belief (religious or otherwise) in an attempt to assert a right of refusal, and hence an unlawful act by the employer. It would, however, be difficult to establish such a claim There are no valid religious objections (suggestions of forbidden substances in the vaccines have been disproven). A determined anti-vax stance would have difficulties in succeeding in establishing as a qualifying philosophical belief; it is difficult to see, in a Covid world, how it could be construed as sufficiently coherent, or how it could be considered worthy of respect in a democratic society. Potentially, religious objections would be most problematic, but as stated, impossible to prove.

None of this has, as yet been tested yet in Court. However, our strong view is that any attempted litigation would pan out as described. In every case, it is difficult to see how vaccination could be anything other than a justifiable means of achieving a legitimate aim.

Nevertheless, any actions taken must accord with the law, and contractual stipulations. Careful preparation is required to achieve the desired objective. To paraphrase George Patton, better a gallon of sweat than a pint of blood. As in all cases, consult your legal advisors before acting.

If any of the issues discussed are, or are likely to be, a concern, please do not hesitate to contact the author. Contact details below.