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HEALTH AND SAFETY VERSUS CIVIL LIBERTIES

12 March, 2021

NO JAB, NO JOB? HEALTH AND SAFETY VERSUS CIVIL LIBERTIES

No jab, no job – easy to say but a minefield to navigate. As the NHS programme rolls impressively on, thoughts turn to how useful vaccine protection might be.

The UK does not generally mandate medical treatment. It works on the basis of consent which is largely effective, for example with infant immunisations.

There are some cases of compulsory vaccination, such as the required Hepititis B injection for medical professionals and vaccinations for international travel. But the wide ranging application of the COVID-19 vaccinations and their capacity to impact society as a whole is quite different and employers are now looking closely at the vaccines’ benefits.

SO, CAN YOU REQUIRE EMPLOYEES TO ACCEPT THE VACCINE?

In short, no. As individuals, we decide what happens to our bodies and have the absolute right to refuse vaccination. Our employer’s view cannot change that. Forced vaccination would be a criminal offence.

WHAT DOES HEALTH AND SAFETY LAW SAY?

The starting point will be your risk assessment, which identifies the coronavirus risk profile of your organisation. Considerations for a business sending employees into people’s homes may be quite different to those of an office-based business where working from home has become commonplace.

Consider carefully the general duties of an employer – to employees and third parties – which require the actions taken to be reasonably practicable. This doesn’t mean doing everything physically possible; the meaning is narrower. Just because it is possible to vaccinate, the law does not require it.

Early evidence suggests the vaccines slow virus transmission and have good efficacy in avoiding infection. It seems likely, therefore, that vaccine acceptance by employees can help to reduce an organisation’s COVID-19 risk. With that in mind, ACAS advises employers to support staff in getting vaccinated with businesses being urged to outline the benefits of vaccination and facilitate its take-up through paid time off to attend appointments.

This is an unusual and potentially uncomfortable position; it is not typically up to industry to champion medical treatment. But whilst this opens up a legal and ethical can of worms, given the scale of the crisis we continue to face it seems likely a court would consider this educational messaging to be a reasonably practicable measure employers can and should be taking. The fact COVID-19 is reportable under RIDDOR strengthens this position.

WHAT ABOUT VACCINE HESITANCY?

The speed with which COVID-19 vaccines have been developed and approved has perhaps inevitably given rise to some hesitancy. This is not a protected characteristic under the Equality Act 2010 and so is insufficient for an employee to claim discriminatory treatment by their employer.

WHAT ABOUT OTHER PROTECTED CHARACTERISTICS?

Disability, sex, race and religion are all protected characteristics. It seems likely most issues will arise when a disabled worker declines the vaccine on medical grounds. If they are dismissed, that is likely to be discriminatory; were it not for their disability, they would not have lost their job.

Pregnant workers will be in a similar position. Your risk assessment may have already identified the relevant individuals, many of whom are also clinically vulnerable or extremely vulnerable to the virus.

There is also evidence that hesitancy is disproportionately high in BAME communities. Employers must be mindful of this too.

WHAT ABOUT ANTI-VAXXERS?

The anti-vax movement is more than mere hesitancy. It believes vaccines are unsafe and impinge on human rights. We may see arguments that this firm belief is a protected characteristic, albeit amongst a small minority. It is difficult to see those arguments succeeding.

CAN A JOB OFFER BE CONDITIONAL UPON VACCINATION?

It seems so; yes. Last month Justice Secretary Robert Buckland publicly backed care providers that have taken this step, noting ‘future contracts…are…matters between employers and employees’ but, ‘where such conditions are imposed there needs to be a very clear rationale for them’. He thought the vulnerability of care home residents might be an example of such a rationale.

WHAT ABOUT EXISTING EMPLOYEES?

This is much more difficult. Mandating the vaccine would require a change to the contract of employment, which in turn requires consultation with the workforce. And whilst vaccine acceptance is high, we are not predisposed to compulsory medical treatment. Businesses may find objections from both vaccinated and unvaccinated employees, concerned about this potential invasion of their human rights.

An employee who is dismissed or sanctioned because they aren’t vaccinated may have the right to bring a tribunal claim. For those with more than two years’ service, this would mean making an unfair dismissal allegation.

WHAT STEPS SHOULD EMPLOYERS TAKE?

Employers should:

  • Prepare and disseminate a vaccine policy, which sets out the organisation’s position and provides information about the approach being taken
  • Think about the form and content of vaccine messaging; there is plenty of guidance available
  • Identify trusted individuals with whom hesitant employees can raise concerns
  • Review COVID-19 risk assessments to include the impact of the vaccines
  • Reinforce existing control measures, including working from home, workplace bubbles, social distancing and hand-washing, which remain essential even when vaccinated
  • Consider how to collect and maintain details of who has been vaccinated bearing in mind data protection obligations
  • Monitor government guidance to keep up to date.

11th March 2021 (Safety Health Practitioner)                                      

RHIAN GREAVES & ADAM PAVEY

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