Mandatory workforce vaccination: Choosing the right approach for your organisation

Author: Darren Newman

To what extent, if any, can an employer insist on knowing whether employees have been given their full course of COVID-19 vaccines? Even more importantly, can an employer make vaccination a requirement for continued employment? And is it fair to dismiss the vaccine hesitant? These are all issues that employers will have to grapple with in 2022, explains consultant editor Darren Newman.

When vaccination is mandated by law

The situation is rather more straightforward than for some employers than for others. In the care industry, for example, those operating care homes are under a legal obligation to ensure that individuals who enter their premises - including employees - have either been vaccinated or can show that for medical reasons they should not be given the vaccine.

What is envisaged by the Care Quality Commission (CQC) is that employees simply present their employer with their NHS COVID Pass. Those who are unable to get vaccinated can apply for a medical exemption. The CQC acknowledges that delays in the system mean that not every employee will have been able to have this assessment yet so, as a temporary measure, self-certification of a medical exemption is permitted until 31 March 2022.

From 1 April 2022, similar rules are introduced across the health and social care sector to any employee who may have face-to-face contact with patients or service users. To be fully vaccinated by that date, workers have to have received their first dose by 3 February 2022.

The upshot of this is that an employee who is not either vaccinated or medically exempt cannot be allowed onto the employer's premises if they may come into contact with patients or service users. For most employees in this situation, this will mean that they can no longer perform the work that they are employed to do without the employer acting in breach of the legislation. That is a potentially fair reason for dismissal - often referred to simply as "statutory ban" - and the only question will be whether the dismissal is a reasonable option for the employer to take.

Subject to the normal requirements to follow a fair procedure - I would expect some sort of hearing where the consequences of the employee remaining unvaccinated are clearly set out - I would generally expect a dismissal in such circumstances to be fair. Anyone with a valid medical exemption from vaccination will be able to present an NHS COVID Pass in the same way as those who have had the vaccine and so the risk of dismissal will be limited to those who have simply decided that they do not wish to be vaccinated. That is their choice, but employment tribunals are likely to take the view that the natural consequence of that choice is that they can no longer be employed.

There may be some cases in which alternative work is available that would not involve the employee coming into contact with patients or service users. This could mean an administrative or managerial role, or the provision of care through an online service or helpline. A reasonable employer would be expected to consider this option, which is likely to be more realistic in the NHS than in the care sector. However, I do not think that this will amount to a very onerous requirement. Employers will not be expected to create roles for employees or transfer employees to work that would not be commensurate with their skills. This is, after all, a situation that the employee has created through their own choice not to be vaccinated.

Is there a risk of discrimination claims in these cases? There is some evidence that certain groups - whether defined by age, religious belief or ethnic origin - are more likely to be vaccine hesitant than others. But this does not mean that members of those groups will be entitled to more lenient treatment. Any dismissal will be on the ground of the need to comply with the law, not the protected characteristic of the individual concerned.

In theory, there could be an argument for an indirect discrimination claim, if a claimant could convince an employment tribunal that a requirement to be vaccinated or show a medical exemption caused a particular disadvantage to a particular group. But I do not think that is a genuine risk for employers. The employer acting on the basis of a legal requirement will have no difficulty in showing that complying with the law is a proportionate means of achieving a legitimate aim, which would mean that no indirect discrimination could be established. As long as the legislation is in place, employers must be able to comply without being held to be acting unlawfully.

When vaccination is not legally mandated

There will also be employers that are not legally mandated to require employees to be vaccinated, but that nevertheless wish to impose such a requirement. Their position is not so straightforward. Employers are of course entitled to encourage vaccination, but dismissing those who refuse is a different matter.

An employer that provides cleaning or maintenance services in the health and social care sector may want to insist on employees being vaccinated (or medically exempt) to ensure that they will be able to work on its clients premises. Whether it would be reasonable to insist on this might depend on how many of the employer's clients operate in those sectors and how difficult it would be to schedule work if there are some employees who are restricted in where they could be sent to work.

An employer might also have more general concerns arising from the nature of the work itself. It might decide that, given the close contact required with other employees or with customers, the safest option is to ensure that all employees are vaccinated.

An employment tribunal would expect a fair employer to allow for medical exemptions, but otherwise the dismissal of those who do not comply might be fair. This would depend very much on the strength of the evidence base on which the employer is acting.

A thorough risk assessment that considers other ways in which COVID-19 risk could be reduced, before concluding that vaccination is the only effective way of creating a safe workplace, would strengthen the employer's case. It would also allow the employer to justify any potential indirect discrimination as a "proportionate means of achieving a legitimate aim". Dismissal might also be justified if the employer could show that its customers need to be reassured that its employees do not present a COVID-19 risk.

What will not suffice is an employer simply deciding that vaccination is a "good thing" or having a moral objection to those who choose not to be vaccinated. Employers should not be pursuing an agenda of their own in promoting vaccination. Any policy that employers adopt should be based on a clear calculation, backed up with evidence, of either their business interests or the safety of the workforce. Employers are entitled to protect their business and, if a vaccination requirement can be shown to be a proportionate and reasonable way of doing that, employment tribunals are likely to support them.