ROLLOUT of the coronavirus vaccination programme across the UK has provided some much welcome light at the end of a very long tunnel. But it may come with some challenges for practices with staff who refuse to be vaccinated.
A recent UK survey reported that only a third of people said they would definitely take the vaccine. What will be the situation for sectors where employing non-vaccinated staff could have an impact? A newspaper article recently quoted the managing director of a plumbing firm who said he would make all his employees get the vaccine. Can an employer do this?
Managers in health and social care may argue that staff vaccination is essential to protect patients, residents and service users. However, it is not yet known for certain that vaccination will stop transmission of the virus, so an employer may find it difficult to argue that an unvaccinated worker would pose any more of a risk than a vaccinated employee. Should research firmly establish that vaccination leads to reduced transmission it is much more likely that a mandatory vaccine would be viewed as reasonable.
Personal rights vs public safety
Under the Health & Safety at Work Act 1974, employers have a responsibility to protect the health and wellbeing not only of their employees but also others on their premises and anyone else affected by the business. So does this mean an employee can be made to have the vaccination? In reality, it will not be that easy. Practices trying to impose mandatory staff vaccination will need to consider the balance between Article 8 of the Human Rights Act (respect for private life) and the risks that may stem from staff not having the vaccine.
Obviously, a practice cannot physically force an employee to receive the vaccine without consent (such an act would constitute an unlawful injury). But the employee could be threatened with dismissal if they refuse. The question here is: would this be a fair dismissal?
Employers should first consider why an employee has refused. It may be related to a protected characteristic, such as a disability. Having a protected characteristic cannot, in itself, prevent the practice from lawfully dismissing an employee for refusing to be vaccinated. Indirect discrimination or discrimination arising from disability can be justified if the discriminatory act is a proportionate means of achieving a legitimate aim. In the case of a potential disability discrimination claim, the practice would need to show that all reasonable adjustments (such as redeploying an employee to another part of the business where vaccination may not be deemed necessary) have been considered before any final action has been taken.
An employee may also argue that they are refusing the vaccine on the basis of a philosophical or religious belief. Many vaccines are produced with animal products, which could lead to objections from some religious groups as well as vegans – all of whom are protected under the Equality Act.
For new staff joining a practice it may be possible to make vaccination a condition of employment in the contract, but this would also be subject to any discrimination risks.
Employees with more than two years’ service have the right to claim unfair dismissal and therefore a practice would need to show that dismissal of a member of staff for this reason was warranted . Justification might include having patients at a medical or dental practice who refuse to deal with a non-vaccinated staff member – or concerns that the safety of vulnerable patients may be put at risk. A fair assessment process would need to be established and this would include providing the employee with adequate explanation and warnings that continued refusal could result in their employment being terminated.
It could be possible, at least in theory, to justify disciplining an employee who refuses the vaccine on “unreasonable” grounds, or if they refuse to be redeployed in a lower-risk role. A practice might be able to show that such steps are proportionate in extreme circumstances where there are no other reasonable alternatives to protect vulnerable persons.
Talking it over
The best approach in such a difficult and sensitive situation is to try to reason with the employee. Explain why they are being asked to have the vaccine and the benefits to themselves and the practice/patients. Discuss any concerns they have and try to alleviate these.
The GMC in Good medical practice places an obligation on doctors to make the care of patients the “first concern” and to take prompt action if patient safety is being compromised. The Joint Committee on Vaccination and Immunisation (JCVI) has recommended that all health and social care workers are prioritised to receive the vaccine, highlighting that those on the frontline are not only at increased personal risk of exposure to infection but also of transmitting the infection to susceptible and vulnerable patients in health and social care settings. While there is no explicit regulatory requirement on GMC registrants to be vaccinated, it may be helpful to include this perspective in any discussion with an employee.
Medical professionals are accustomed to examining the evidence base for treatment decisions and it may be helpful to discuss what evidence the employee has relied upon in reaching a decision not to be vaccinated.
Employers should also remember that pregnant employees may be recommended to have the vaccination if they are at high occupational risk of contracting the infection but could have additional reservations in light of the limited data available on risks of vaccination in pregnancy. Particular caution should be exercised in any discussions with this group of employees.
The government has stressed throughout the pandemic that employees should not be penalised for following Covid-19 guidance – including the guidance that vaccination is not mandatory. There are risks to practices in either disciplining or dismissing an employee who refuses the coronavirus vaccination.
The MDDUS employment law team are here to talk through any particular issues that you may have with the vaccination programme. Contact us at firstname.lastname@example.org.
Liz Symon, employment law adviser, MDDUS