Update for employers on the COVID-19 vaccine

As the COVID-19 vaccination begins to be administered, we consider the implications this will have on employers and employees within the workplace.

Context matters when considering whether to mandate the vaccine and this article sets out some considerations employers should take in relation to the COVID-19 vaccine.

Can employers require their employees to get the COVID-19 vaccine?

There is a duty implied into an employment contract and employment relationship that employees are required to obey the lawful and reasonable directions of their employer.

In order to determine the question, can employers mandate the Covid-19 vaccination, it must first be considered whether an employer’s direction to be vaccinated is a “reasonable instruction”.

What constitutes a “reasonable instruction”?

Many employers will argue that it is reasonable to request their employees get the vaccine because it is a necessary health and safety measure. However, there are certain businesses that have a stronger case for health and safety requirements than other businesses.

For example, employers working in the healthcare or social care sector will have a strong rationale of arguing that enforcing the vaccine as mandatory for their employees is reasonable because their employees’ refusal to have the vaccine is likely to put vulnerable people at risk. They have a legal obligation to minimise the risk of infection to patients or service users, so will be in a stronger position to require their staff to have the vaccine in order to comply with their legal responsibilities.

Employers in other sectors, such as those where work can be carried out at home may have a weaker argument for mandating the vaccine, although they do have a statutory duty of health and safety towards their whole work force and so this will also need to be considered if employees, whether vaccinated or not, are required to work in close contact in the future.

Ultimately, each employer will have different factors to consider when requiring their employees to be vaccinated. It is advised that employers seek legal advice in order to establish:

• the strength in their case for mandating the vaccine in their organisation;
• the best practices for enforcing this requirement; i.e. ensuring that any policies or workplace health and safety documents are updated to include this obligation.

Can an employer dismiss an employee if they are not vaccinated?

If an employee does not follow a reasonable instruction, this could be a legitimate cause for that employee to be dismissed.

The most likely way to dismiss any employee would be for “dismissal for some other substantial reason” (SOSR) under the Employment (Jersey) Law 2003, which is a potentially fair statutory reason to dismiss an employee. However, it is important to note that if an employee is dismissed for SOSR, a fair dismissal process still has to be followed and each case must be considered on its own facts.

Employers will need to take a proportionate and reasonable approach when considering whether or not to dismiss an employee in case there is any legal challenge to the dismissal.

Employers should seek legal advice before deciding whether or not to dismiss someone for this reason, given the fact-specific nature of this decision.

Can an employer refuse to recruit a candidate if they are not vaccinated?

There is nothing directly prohibiting an employer from not hiring candidates if they are not vaccinated. However, employers should be very considerate of potential scenarios in which a claim for indirect discrimination may be brought if an employee cannot be employed or even return to work without a vaccination.

Differentiation in treatment between those who have been vaccinated and those who have not can amount to indirect discrimination if a Protected characteristic is involved (e.g. sex, pregnancy, disability). For example, current guidance suggests that the vaccine may not be appropriate for pregnant women or women who are attempting to become pregnant and so refusal to appoint a pregnant candidate because she has not been vaccinated, is likely to be treated in law as indirect discrimination on the grounds of pregnancy.

What are the risks of requiring my employees to have the COVID-19 vaccine?

If employers want to make the COVID-19 vaccine a contractual requirement, existing staff will need to accept this as a change to the terms of their employment contract. If employers enforce this change without an employee’s express consent then the employer will effectively be in breach of contract and employees may be entitled to resign and claim constructive unfair dismissal.

If no mandated policy is introduced, but instead employers encourage their staff to take the vaccine, the question then arises about what an employer should do with those employees who cannot or decide against having the vaccine. Consideration may have to be given to making changes to their working patterns or activities to protect not only them but the wider workforce. However as mentioned above, employers will have to tread carefully to ensure they are not inadvertently exposed to direct or indirect discrimination claims.

More importantly, in the absence of any mandated policy, how does the Employer obtain confirmation from their workforce that they have obtained the vaccine? Such information would represent Special Category Data from a data protection perspective and employers can only collect this information if they have a legitimate reason connected to their business. This will need to be considered by the business before asking for the information.

One final point to consider, employers who mandate the vaccine could be subject to a personal injury claim if an employee suffers an adverse effect from taking the vaccine.

The contents of this article do not constitute legal advice. To discuss any matter that may be related to this article, you can request a meeting with one of our team by filling in the form below.

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