It has been recently reported in the media that Pimlico Plumbers is to rewrite all of its contracts to require its workers to take the COVID-19 vaccine.
This “no jab no job” policy raises an important question for businesses in the coming months i.e. can a member of staff be forced to get vaccinated against COVID-19?
Employees who have over two years’ continuous service cannot be forced to take a vaccine, because employers cannot fairly terminate someone’s employment in the circumstances. However some discretion may be afforded to businesses in certain sectors, particularly health and social care, where there is a reasonable purpose to insist on the vaccine, in the same way that employers require someone to wear PPE.
It is unlikely this requirement will be extended to the wider UK public, including customer facing members of staff, but is understandably reasonable for people who may have to work on an ICU COVID ward.
The situation is different for those with less than two years’ service and those who are not employees, namely workers and the self-employed. These people are unable to bring a claim for unfair dismissal. In the circumstances, employers could insist on the vaccine, otherwise the individual could be fairly dismissed.
However employers must be mindful of discrimination claims, especially members of staff who complain that they are being discriminated because of a protected characteristic. This could include pregnant members of staff who may have a legitimate medical reason to refuse the vaccine.
Those with certain allergies who are medically advised to not take the vaccine may also be protected. Although having an allergy does not automatically amount to a protected characteristic, this will depend on the severity of the allergies in order to ascertain whether it could amount to a disability.
Furthermore people may have strongly held religious reasons for refusing the vaccine, such as vegans due to the involvement of animal products or because of an anti-vaccination belief. These arguments are less likely to succeed unless they are strongly and legitimately held.
In the months ahead, businesses and members of staff may also be faced with additional requirements for COVID-19. In the same way as it is a requirement to have certain vaccinations before entry into a foreign country, it may be the case that airlines, foreign countries, theatres, stadiums and large venues could insist on the production of a COVID-19 vaccination certificate. This in turn may make it difficult for individuals to carry out their work if they are unable or unwilling to get vaccinated, thereby potentially allowing an employer in such a unique situation to undertake a fair dismissal for capability or some other substantial reason.
In summary, businesses should be cautious about making any rash decisions about threatening dismissal or compelling their workforce to take up the vaccine, especially in these early days. However, as the weeks and months progress into the spring and summer, the situation may change and evolve.