Reluctancy of getting the Covid-19 vaccine at work

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In light of the new Omicron variant of COVID-19 hitting the headlines, we have received a number of enquiries from employees and employers alike requesting information on mandatory vaccinations or the wearing of a mask at work?

As it remains one of the most polarising subjects in the world currently, it is something that not many want to address. In this article, we will attempt to wade through the complications of safeguarding against COVID-19 and the COVID-19 vaccine at work.

Can I be forced to have the COVID-19 vaccine?

Currently, the law in England states that only care home staff and volunteers must be vaccinated. There are no other laws in England, Wales of Scotland that states any other works must have the vaccine. If you work or volunteer in Care Quality Commission (CQC) registered cares homes, it was law that you must be vaccinated from 11^th November 2021, unless you are exempt.

A further change in the law has been proposed by the government which looks to be introduced from April 2022. It would require all people working in CQC-regulated health and social care workplaces in England to be fully vaccinated, unless they are exempt.

Legally, you can not be forced into having the vaccine. However, there may be implications at work should you choose not to do so.

Could I lose my job for not being vaccinated?

Firstly, it is important to note that an employer does not have the right to compel any existing employees to get COVID-19 vaccine at work without their consent. However, an employer could take action, as they feel appropriate, against employees who take this viewpoint.

Should an employee have less than two years’ service, they are not afforded the same protections similar colleagues who have worked at the business for two or more years will receive. An employer could therefore dismiss them and would not have to justify this dismissal with a potentially fair reason. Regardless of the length of service, this does not allow an employer to dismiss someone if the reason for doing so is discriminatory – this is covered later in this article.

An employee who has more than two years’ service could potentially have a claim for unfair dismissal if they feel that their employer has not followed a fair process in dismissing them.

Government guidance currently highlights two of the five potentially fair reasons for dismissal of staff who refused to have the COVID-19 vaccine at work:

If the employee cannot continue to work in their position without the employer contravening a duty or restriction imposed by or under an enactment (illegality); or
Some other substantial reason (SOSR) that would allow the employer to dismiss the employee.

Practically, The Health and Social Care Act 2018 would be the only law that would lead to a client being dismissed for illegality. As noted above, there are no other laws in place in England, Wales or Scotland that currently make COVID-19 vaccines at work mandatory.

An employer will therefore have much a much greater prospect of success if they look to dismiss an employee for SOSR. It may be seen as justifiable and fair if an employee works in a client-facing role and more so if those clients are viewed as vulnerable. If the SOSR in that instance is that an employee has been dismissed as to avoid them unnecessarily causing harm and the potential death of the clients then the reasoning may prove difficult to argue against.

If an employer is considering dismissal of an employee with over two years’ service, it is important to consider any other options that may mitigate this. Changing an employee’s role, home working (where possible) or, in rare circumstances, allowing an exceptions may all be worthwhile, rational alternatives.

As Employment Tribunal cases are still in their infancy, it is extremely difficult to determine whether these or other measures, such as wearing a mask at work or lateral flow testing, would be viable alternatives.

Discrimination

A separate claim for discrimination may apply if an employee was dismissed for a discriminatory reason. It is extremely important to note that a reason may only be found to be discriminatory if it involves a protected characteristic (sex, age etc). In this example, the only protected characteristic that might be arguable is religion/belief against having a COVID-19 vaccine at work.

If a religious group disapproves with vaccination or if there was some concern about the contents of the vaccination (eg animal derivatives), there may be an argument that it discriminated on this basis however, as far as we are aware, the majority of religions do not disagree with the principle of vaccination and none of the vaccines currently rolled out in the UK contain any animal derivatives.

Will an “anti-vaxxer” fall into a protected characteristic?

While not impossible that a die-hard belief in anti-vaccination could fall under the Equality Act 2010 (EqA), it is extremely unlikely. The belief would only be protected if the employee in question could demonstrate this to be consistent throughout a number of years and not completely based on recent information.

A parallel could be draw with the case of Mr J Casamitjana Costa v The League Against Cruel Sports which involved veganism and belief, in which veganism was shown to be a genuinely held philosophical belief and therefore a protected characteristic under the EqA.

It must, however, be noted just how strong Mr Casamitjana‘s belief in veganism was; there were an abundance of examples of his belief. There were products and services that he would not consume, use or wear, if his destination was within an hour walking distance he would walk in order to avoid accidental crashes with insects or birds when taking a bus or public transport and he also refused to date or even share a property with anyone who was not also a vegan.