The impact of the Covid pandemic on businesses the length and breadth of the country is almost unmeasurable. Yet now, as the vaccination programme rolls out at pace, there starts to be some light at the end of the tunnel and the nation can consider a return to a level of normality.
Vaccination is not compulsory, and some people may have medical or ethical reasons that stop them being vaccinated. Nor is the vaccine roll-out an overnight process and for it to have its greatest impact will take time, but for employers hungry to enjoy the full advantage it can afford to the recovery of their businesses and the wider economy, what options exist for mandating their workforce must be vaccinated.
Here, Julia Fitzsimmons from our specialist employment law and HR team, outlines the points that employers must consider before making such a demand.
“The debate around employers demanding that staff get vaccinated captured the attention of headline writers when Charlie Mullins, Founder and CEO of Pimlico Plumbers, announced his company would rewrite contracts stipulating vaccination as a condition of employment and deal with non-compliance on a case-by-case basis. It’s a bold assertion and perhaps not a surprising one from such a flamboyant business personality, but in all reality, it has little basis in employment law.
“For starters, it is not government policy to legally require anyone to have a COVID or any other vaccine. It is a moral rather than legal obligation to take up the government’s offer to make the vaccine available – why then, would an employer take a more severe line?
“Making vaccination a condition of continuing a member of staff’s employment is in many respects, akin to current guidance on both drug and alcohol testing, and also right of search. In those instances, an employer cannot physically submit an employee to what would be technically assault if they did not agree to drug or alcohol testing or a physical search – vaccination should be no different.
“Looking more closely at employment law, any dismissal on the grounds of refusal to be vaccinated would likely lead to an unfair dismissal tribunal where an employee has two years or more service. Additionally, there could be discrimination complaints if there are health, religious or ethical beliefs that lead to an individual choosing not to take the vaccine which result in dismissal.
“Logistically there are currently no commercially available vaccines; if there were, the cost in any case could be prohibitive to many employers.
“So above all, businesses would be well advised not to follow the attention-grabbing position taken by Mr Mullins. Instead, they’d be better placed working with staff to discuss the potential benefits that the vaccine could have on mental and physical wellbeing; they could offer paid time off to travel to some of the larger vaccination centres; and they could use this time to engage with staff to understand their concerns and worries.
“For businesses which work with vulnerable people or provide essential services, it may become necessary to ask for evidence of vaccination but only as a means of offering positive encouragement to staff if they are reluctant to take it up, and not as a means of bullying those with genuine reasons for refusal. Any employer with concerns around their team being vaccinated or not, should seek legal guidance before making decisions which could have negative consequences at a later stage.
For help and advice on these issues Julia Fitzsimmons will be able to help.