Kuldeep S. Clair, Consultant Solicitor, offers his views
I wrote last year on the impact of Covid-19 on employment law. This piece follows on from that. It should be of interest whether you are an employee or employer.
In 2021, this has developed into a question of where the rights of employers/employees conflict when the employer has a preference for employees to be vaccinated from the virus. The variety of individual situations to which this problem could apply are countless, and there have also been no authorities from the courts or employment tribunals specifically concerning such covid-19 – related employment cases.
Unfortunately, that has meant that whatever guidance that has been available from HR consultants to employers has also been very vague. Even on the web, some of the legal sites have avoided stating virtually anything of substance on the issue. I think some are incorrect. I will now try to be as forthright as possible, at least in common situations:
- Employers are under a duty to look after the health and safety of all their employees. They also have duties towards their customers, clients, patients, suppliers, and other third-party individuals with whom their employees and agents come into contact. That can be a difficult balancing act.
- When particular employers such as care homes and the NHS are dealing with vulnerable individuals, there is a heightened fundamental duty of care towards those individuals. Any employee with face-to-face contact who refuses to be vaccinated may pose an unnecessary risk and may be moved to a different role, if that is possible. As a last resort, I can foresee circumstances where dismissal would certainly be lawful.
- What about employment situations where the employee is in a public-facing role such as in retail, where she/he refuses to be vaccinated despite obvious risks to customers / clients / colleagues? Large well-known employers are going to be less likely to want to attract bad publicity by being seen to be arrogant or dismissive of their workers’ rights – at least in practice.
But the fact is that vaccination reduces the risk of infection to all third parties coming into contact with the employee. Unless there is a medically justifiable reason for not reducing the risk of passing on the virus to anyone else by vaccination, I believe that a tribunal could regard a dismissal on this basis as fair and justified. It could be classed as ‘some other substantial reason’ under the possible legitimate reasons under Employment Rights Act 1996 sec 98, and therefore as fair and lawful.
- What I have said above is all subject to the procedural requirements which apply in order to render a dismissal fair. You cannot circumvent those, and employers must go through a proper procedure, and consider alternatives.
- And what about situations where employers are recruiting for public-facing roles where customers / clients may want the reassurance of employees to be vaccinated? Could employers impose a willingness to be vaccinated as a criterion for recruitment for candidates? This may apply particularly in the case of those company-employer representatives visiting customers’ homes. I doubt whether having such a requirement for new recruits to be vaccinated would be unlawful, subject to making allowances for medically-exempt candidates.
Can’t there be other reasons for refusing a vaccination, other than a medical reason?
- It has been suggested by some lawyers that the right to equal treatment irrespective of religion or philosophical belief, pursuant to rights under the Equality Act 2010, or the Human Rights Act 1998 might be one. What is my personal view?
- Personally, despite being a very liberal proponent of equality and human rights, I am not convinced. Firstly, despite the rhetoric, I am unaware of any religion that explicitly supports the refusal of covid-19 vaccination. There are, of course, conspiracy theories around. Perhaps my brain has been contaminated by a microchip as well, implanted by Bill Gates, which is why I am dismissing these coronavirus conspiracies so easily!
- But joking aside, the legal requirement for any philosophical belief to be considered ‘worthy of respect’ is that it must be ‘seriously held’. Precedents in the employment tribunal have shown that. Furthermore, even if a tribunal was persuaded that an employee’s religion or philosophical belief did genuinely restrict him/her from having a vaccine that could protect not only the employee but others as well, there would be another hurdle. There would be a discretionary balance of convenience to be overcome, and an employee would have to prove under the statute that the discretion should be exercised in favour of the employee, and against the wider public health benefits of vaccination.
- I would say that the public health issue is a strong and difficult hurdle for an employee to overcome. Tribunals have already shown themselves unwilling to give employees carte blanche to, for instance, wear religious uniforms/clothing, or proselytise their religion in the course of work, or act in a manner which is itself unacceptable or offensive, simply because they are following their faith.
- All human rights are a matter of balance. By their very nature, they cannot be written in stone. That is something that the anti-human rights brigade, driven by the tabloid press, have succeeded in avoiding the general public from understanding. The protection of human rights by statute is positive, but these rights need to be put into concrete by hard judicial decisions.
I am certainly not suggesting that employers can ride roughshod over employees’ rights on the issue of vaccination; far from it. It is a nuanced issue, and whether you are an employer or employee, each case will need a tailored assessment of the circumstances. The most appropriate solution may still range from not being able to take any action at that time, to threatening dismissal, and several more subtle options in between.
Let’s be clear. If you are an employee, no employer can actually drag you to a clinic and force you to be vaccinated. Even the government cannot do that, and unless there is a political earthquake, it never will. Human rights are well protected here, despite the hollow protestations of those complaining about the effects of the lockdown on their human rights. But being unvaccinated may well have consequences for your employment from 2021 onwards, depending on the circumstances.
This is very much a developing area of law, and I have expressed my objective opinion at the present time based on my lengthy legal experience, basing it upon my objective understanding of the science, and unencumbered by politics or religious zealotry.
You may benefit greatly from discussing your specific situation with me. Please arrange for a consultation by appointment with me personally by video or phone. I am making myself available for a remote consultation at this very difficult time. I will do whatever possible to help those adversely affected by this crisis.
For expert advice on any employment issue, please contact me on 07484 614090 or email@example.com
Solicitor of the Senior Courts of England and Wales