17 February 2021
You may have read in the press that Pimlico Plumbers plan to adopt a “no jab, no job” Coronavirus vaccine rule for their workers. Although they have said no-one would be forced to receive a vaccine or be dismissed if they refuse the vaccine, new starters who are not immunised would not be given work.
Nadhim Zahawi, the vaccines minister, has said that it was “up to businesses what they do” which could suggest that employers could insist on employees receiving the vaccine prior to returning to the workplace.
The Vatican actually implemented a decree which implied that employees could lose their jobs if they refuse vaccination without legitimate health reasons. After criticism on social media, the Governor of the Vatican City has since clarified the decree and issued a statement to say that “alternative solutions” would be found for those who do not want to get a vaccine.
Is it lawful?
From a legal perspective such a vaccination policy is at best risky and potentially unlawful.
The Public Health (Control of Disease) Act 1984 currently states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.
It could result in various claims being brought by an employee, as:
- any change to a contract of employment’s terms without agreement could result in a breach of contract claim;
- any dismissal is likely to be an unfair dismissal claim provided the employee has two years’ service; and
- a refusal to employ on these grounds could give rise to a discrimination claim, if the employee’s refusal to be vaccinated was due to a disability, religious belief or other protected characteristics.
To this list could be added infringement of human rights and possibly even criminal liability for forcing someone to have a vaccination under duress which could constitute unlawful injury.
It is reasonable for employers to put policies and procedures in place to protect its employees, workers, visitors, clients and customers and indeed at present this is a requirement. It is reasonable to encourage your employees to be vaccinated but to make it mandatory is fraught with risk.
What about mandatory testing?
Individual consent is required to conduct each test and it is unlikely that it will be reasonable for an employer to require an employee to be tested if they are not exhibiting symptoms (for example, as part of a routine testing programme to identify possible asymptomatic cases). Whether testing is reasonable in these circumstances will depend on the extent to which the risk of Covid-19 cannot be managed in the workplace by other measures, such as social distancing and remote working. In most cases it will be difficult to argue that the risks to the entire workforce cannot be managed by other less invasive or draconian measures.
Where testing is considered necessary and proportionate, businesses may seek to make testing a contractual obligation. Then failure to comply would be a breach, which may entitle the employer to take disciplinary action. Before doing so, the employer must consider the employee’s individual circumstances and any mitigating factors, as employees may have valid reasons for refusing. The requirement to be tested could also disproportionately affect some protected groups, such as those with certain disabilities.
Businesses are better off encouraging voluntary testing or vaccinations by communicating to employees how they could reduce the risk of closure and the threat to jobs and livelihoods and reassure employees that test data will be handled sensitively and securely and nobody will suffer financially if they test positive or need to self-isolate.
If you do want to test you employees the government has expanded its rapid lateral flow tests to employers with more than 50 employees. More details can be found here: www.gov.uk/get-workplace-coronavirus-tests
If you have any enquiries about this or any other employment law matters please contact Gill Brown or Jacqueline Kendal in our Employment team:
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This article is current at the date of publication set out above and is for reference purposes only. It does not constitute legal advice and should not be relied on as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action.
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