Recently, Pimlico Plumbers (a company already famous amongst employment lawyers and employers in respect of holiday pay) announced plans to rewrite all of its workers' contracts to require them to be vaccinated against coronavirus.
So, can this be done?
Contractually, changes cannot be made unilaterally so this would need to be done with employee/worker agreement. One would assume that those that agree are happy to be vaccinated, so the main issue is what can an employer do when an employee refuses to get vaccinated.
The decision by Pimlico Plumbers is based on health reasons. If workers are not vaccinated, they have a much higher chance of catching COVID-19, and the individuals therefore pose a higher risk to customers and are greater risk themselves.
In an office environment the risk would not necessarily be to customers or clients, but colleagues. However, office work can generally be conducted from home which negates the face-to-face contact with others and therefore, the significantly reduces the risk of spreading coronavirus. Tradespeople do not have that luxury. One quote from Pimlico Plumbers Chairman stated "If people don't want the vaccine, let them sit at home and not have a normal life", suggesting the alternative was that the individual would not be working (and/or furloughed, if available).
Decisions will be made on a case-by-case basis as to whether individuals refusing to get vaccinated are kept on. There is an inherent risk in “letting people go”. For one thing, employees with two years’ service have a right to not be unfairly dismissed. It is unclear as to whether dismissing an employee who refused a vaccine would be unfair – it is possible that, in the case of a person who is in direct contact with others, such as a plumber, the requirement that you are a low transmission risk might be ‘some other substantial reason’ and so may allow the dismissal.
Equally, this can apply to individuals working on third party sites. If a rule of a particular site requires vaccination or testing but the individual refuses to comply, they would be unable to operate on that site. If redeployment is not an option, then there is possible justification to dismiss for some other substantial reason. For a homeworker, this approach may not be justifiable. Of course, there is uncertainty here as we are all in new territory.
One other point of consideration is discrimination. Has the individual refused the vaccine because of a protected characteristic? Some protected characteristics won’t affect an individual’s decision to not take a vaccine, but some will. Generally, people can refuse vaccination for legitimate reasons such as being pregnant or breastfeeding, for religious reasons, because of disability or allergy, or for ethical vegan reasons if the jab contains animal products. Many of these reasons could provide protection under the Equality Act.
However, some of these beliefs, whilst legitimate, are not valid in relation to the current COVID vaccines. The BBC has reported that the reason for certain ethnic or religious groups refusing the vaccine so far have been due to various streams of misinformation. There have been many suggestions made over social media that the vaccine contained animal products, forbidden for certain religious groups (and vegans fulfil the protected characteristic due to having a philosophical belief). This is not true. There are no animal products contained, and the vaccine has been widely endorsed by religious leaders. Sadly, it may be that so called ‘anti-vaxxers’ may also use this opportunity to test whether their beliefs meet the standards required for protection under the Equality Act. However, I would stress that these have been debunked and I believe that they will not be seen as reasonably held, regardless of conviction.
Based on the above, the key is information. For the employer, find out why the employee would be opposed to vaccination. If they have a valid reason, it would be sensible not to attempt to enforce it upon them unless you want to risk a claim being brought. If the individual’s reasons for not wanting the vaccine are not well-founded – educate them. If they are still opposed, it can create a difficult situation. Be wary that their belief, even if not well-founded, may still cause them to bring a claim, even if there is little chance of success.
Ultimately, the bottom line is that an employer cannot force an employee to receive a vaccination without there being potential consequences including complications in the employment relationship and the prospect of a dispute. Where employees are hesitant to get the vaccine, consider the alternative options:
- Homeworking ensures that the individual is not in contact with others.
- Redeployment – check the individual’s contract to see if this is possible.
- Regular testing (if available – though bear in mind that individuals may object to this as well and this approach may have its own GDPR concerns, due to medical information being sensitive data).
Some options will simply not be feasible and, if none are, it may be time to make hard decisions.
What does this mean for you or your business, and what should you be doing now?
There are two types of safety here for employers to consider – safety of individuals and legal safety. Trying to enforce safety of individuals by requiring mandatory vaccination may be a worthy goal, but it does potentially place the employer at risk of disputes developing, whether that is for unfair dismissal and/or discrimination.
The safest choice for a company is to strongly encourage vaccinations. Where resistance is met, discuss the reasons why and work out the best solution to ensure that the individual can keep working. In conclusion, the main message is treat each circumstance on its own merits and seek advice.
These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.