Return to Work – what if Employees refuse vaccination?

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 upon which we are now embarking.

But what happens if significant numbers refuse vaccination?

In Europe in the twenty first century we have (or had, until 2020) a relaxed attitude to communicable diseases; it is something which happened to other people in countries far away in time and distance. Except…previously ‘eradicated’ or controlled conditions such as TB and Measles have returned to the UK as infective agents, a rise fuelled by mutation, refusal to vaccinate and immigration of infected individuals. None of this would matter, but a casual attitude to immunisation and lethal diseases, inculcated by a false sense of safety, has led to a rapid drop=off in vaccination when compared to the 1950s to 1990s. This is now 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 not the forum to deal with the cause; here we examine its effect in the sphere of employment.

Individuals are, of course, free to refuse to be vaccinated, and there is no intention to legislate to alter this position. It is difficult to see how any democratic government could, in any event, force vaccination. Without consent ‘the merest touching is assault’, a concept 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 for such a 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 in favour of the claim would be that an employer’s vaccination demand is unreasonable. It is easy to see, in today’s pandemic world, that there are powerful arguments against this view. As one of the potentially fair reasons for dismissal is ‘Some Other Substantial Reason’ (‘SOSR’) then such an argument, against the backdrop of over 100,000 Covid deaths in the UK, does not seem at all unreasonable. This seems logical in terms of both Health and Safety and business recovery. It is difficult to envisage a reasonable decision 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 yet 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 a successful 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 considered a protected characteristic and so is incapable of giving rise 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 allege an unlawful, discriminatory act by the employer. It would, however, be difficult to establish such a claim. There are no valid extant religious objections (suggestions of religiously forbidden substances in the vaccines having been disproved). A determined ‘anti-vax’ stance would have great difficulty in succeeding in being established 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 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 General Patton, better a gallon of sweat than a pint of blood.

As in all cases, consult your legal advisors before acting.

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