No vaccination, no job?
We have been asked to discuss the potential for employers to request that employees take a Covid-19 vaccination.
Without any contractual term already being in place for existing employees (which is unlikely given that the pandemic could not be foreseen), we feel it would be difficult for employers to insist that its current employees must take a Covid-19 vaccination and indeed, the prime minister’s official spokesman has said: “Taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one.”
Employers are therefore ensuring that their employees have access to verified information and assurances about the vaccine to encourage the acceptance of a vaccine when it is offered but if an employer attempts to ‘force’ an existing employee to take a vaccine, that this would be open to legal challenge and until tested in court, companies should act cautiously.
What about new recruits?
The situation may, however, be different for new employees. Companies must keep their own workforce and their customers safe in accordance with health and safety legislation. Therefore, certain employers are already starting to incorporate a term into their contracts of employment that are going to be offered to any new recruits to state that they must have had a Covid-19 vaccination to begin their employment.
There is nothing in law to prevent employers doing this, but employers should consider all the individual facts and circumstances.
We believe that consideration needs to be given to the role that is being advertised and will need to be assessed on a case-by-case basis. If an employee will have a lot of exposure to a vast number of people or perhaps vulnerable people, then this may be entirely justified and of course, a company is entitled to offer new terms to new employees that are different to those in place with its existing employees.
However, taking this action right now could be discriminatory because the current vaccine rollout is mainly offered based on age and so younger applicants will be disadvantaged by such a new clause given that younger adults may not receive their vaccine until the summer months (or later, depending on supply). Many companies may therefore delay the recruitment of any new staff until every adult has been offered the vaccine to avoid this potential argument.
Consideration will also need to be given to any potential recruits that may have a medical exemption or perhaps some religious or cultural beliefs or those who may not are able to access the Covid-19 vaccine and whether to refuse new employment without being vaccinated would then be discriminatory.
Until these issues are addressed in direct legislation or in our Courts or Tribunals, we are dealing with an emerging area of law and careful consideration needs to be given in each case and a broad-brush approach will not be appropriate.
If you would like to talk through any employment related issues, please do not hesitate to call Stephen Nixon or Katie Baker-Clifton on 01922 720333.