2 Jul 2021

As the UK economy begins to reopen and lockdown restrictions are eased, more employers are putting plans in place for their employees to return to the workplace. But how many will return willingly?

The success of the UK’s vaccination programme is cited as the principal reason for allowing individuals and businesses to get back to some sort of normality (or at least move towards a “new normal”). However, there remains a degree of nervousness, as we take tentative steps towards changing how we have adapted to working over the past 15 months. 

The interplay between vaccination and attending the workplace introduces some tricky legal issues. The specific business needs, culture and preferences of the employer will often dictate the strategic approach to allowing (or requiring) employees to return on-site – and whether they need to be vaccinated before doing so. In many cases, this may be at odds with individual attitudes to vaccination.   

The scope for potential conflict is obvious. It raises two related questions, depending on whether the employer or employee is, often justifiably, proceeding with caution: 

  1. Can an employer require an employee to be vaccinated (and provide proof of vaccination) before allowing them into the workplace? 
  2. Can an employee refuse to return to the workplace, even if instructed to do so by the employer, until they have been vaccinated? 

The answer unsurprisingly depends on specific business and personal circumstances. As a broad principle, an employer will need strong business justifications for mandating vaccinations.   

Encouraging or requiring? 

The general position adopted by ACAS is that employers should support staff to get vaccinated rather than making it a requirement. There is, after all, no strict legal obligation on citizens to receive a vaccine. ACAS suggests paid time off for vaccination appointments and not counting absence caused by adverse reactions to the vaccination towards any absence related trigger system. 

However, ACAS also recognises some employers may want to take a more robust approach. In these instances, it emphasises the value of consulting with employees, and if applicable unions or consultative bodies, regarding the business case for the proposed requirement and the way forward. 

Undoubtedly, where an employer wishes to introduce a mandatory approach, doing so without first adopting some form of consultation process is likely to make it more difficult to justify. 

Testing not vaccinating 

A key question in putting together business justifications is exactly what grounds the business has for going further than simply adopting a workplace testing program.   

Even with this less intrusive approach, there are significant legal issues and risks to work through; broadly speaking the considerations are the same whether adopting testing or going further than this. However, in many cases, it will to be easier to justify than a mandatory vaccination requirement. Whether there is a need to go further than testing should form part of the employer’s analysis.  

No vaccination as a reason to refuse a return to work 

How should an employer handle an employee refusing to return to work until they have had the vaccine or their colleagues have been vaccinated? 

Whether it’s reasonable for the employee to take such a stance will depend on the particular case. For example, it may be justifiable if they are a pregnant employee who is unwilling to be vaccinated, or an employee with an underlying health condition that puts them at greater risk.     

The other measures an employer has put in place to make the workplace COVID secure will also help determine whether an employee’s refusal and/or any resulting action taken by the employer is reasonable. See ‘The problem with enforcement’ below. 

The discrimination conundrum 

Discrimination considerations are likely to shift as the vaccine roll-out progresses and we have a better understanding of the underlying science. For example, in recent months requiring proof of a vaccination would have disadvantaged younger groups of people (who had not yet had the opportunity to be vaccinated). Concerns regarding age discrimination are less relevant as vaccinations have become more widely available. Similarly, there is currently uncertainty around whether pregnant women or those trying to conceive should have the vaccine, but this may change as we begin to better understand the effects of the vaccine.   

Claims based on other protected characteristics are less likely to change. For example:  

  • Disability: Some individuals may be advised not to have a vaccine, due to long-standing health conditions.
  • Religion / belief: It is unlikely‘anti-vaxxers’ would be covered, as a protected belief needs to have a level of cogency and seriousness that is worthy of respect in a democratic society and does not conflict with the fundamental rights of others. In our view it would be difficult (but not impossible) to convince a court that this was the case. However, some individuals may object to a vaccine on genuine religious or other moral beliefs – for example, if it uses materials derived from animals or because of the scientific methods used to develop or test the vaccine. 
  • Race / ethnic origin: There is some evidence of lower take-up of vaccines amongst certain ethnic groups, for various reasons. Whether this can be used to justify refusing to provide proof of vaccination is open to question (particularly once everyone hashadthe opportunity to receive a vaccine), but this could well be a live issue for some time.  

Objective justification 

The relevant legal issue is indirect discrimination – that is, applying the same requirement for proof of vaccination to everyone, but where it disadvantages individuals with the above protected characteristics. This type of discrimination can be objectively justified under law, if it is “a proportionate means of achieving a legitimate aim”.   

A legitimate aim is usually fairly easy to establish – in this case, it would be protecting the health and safety of fellow colleagues (particularly if there is scientific evidence that vaccination reduces transmission).   

However, the issue of proportionality is likely to be more finely balanced. If it was shown there were alternative ways to protect health and safety, so proof of vaccination was not reasonably necessary, the defence of objective justification would not be met. These could include, for example, additional hygiene measures / social distancing, limiting the number of people on site or mass testing (see below).  

The problem with enforcement 

As well as the uncertainty around introducing a COVID vaccination strategy, there is a further issue of how to enforce it. What action can an employer lawfully take if employees refuse outright to have the vaccination or to provide proof of it? 

References in the media to “no jab, no job” are unhelpful and do not reflect the nuances caused by specific circumstances. 

Whether an employer could justify disciplinary action such as dismissal (or not offering a job to a candidate who has confirmed their stance regarding having a vaccination) will depend on the strength of their business case. How do they justify the approach as essential for business reasons, what is the nature of the work carried out, or the environment in which the employee works?

It is easy to see the link between necessity and the mandatory approach announced by the government in relation to care home workers, but how does this translate to a socially distanced office environment and one where the end user isn’t ‘vulnerable’?      

A short-term issue? 

In summary, whether it’s the employer or the employee who is saying “no jab, no return”, currently it’s the employer who has an uphill struggle to impose their will.

The legal landscape is likely to shift relatively quickly in the coming months, as the vaccination programme is rolled out to wider sections of society. If the UK Government meets its target of offering a vaccination to every adult by the end of July 2021, these issues will recede significantly.

The number of employees who have not been vaccinated will probably be relatively small and perhaps confined to those following specific medical advice or refusing a jab based their own personal views or beliefs. These will need to be considered on a case-by-case basis. However in other more straightforward instances and as the landscape shifts, it’s likely an employer with well thought-out and legitimate grounds will have more scope to justify their approach.

If you have any questions, please do not hesitate to contact Dominic Holmes or Shelley King.