In a recent survey* of 750 UK based employers 40% said that they would enforce employees getting the COVID vaccine. Many of them indicated they would do this by making it a contractual requirement and would consider dismissing an employee who refused to be vaccinated. Of significant concern is the potential for an employee to take legal action against an employer for dismissing them for refusing the vaccine.

So where does the law sit? Given that the government are not mandating vaccination of the population there is no legal framework that employers can rely on. Therefore, there are two possible claims that an employee could bring, unfair dismissal or breach of Article 8 of the European Convention on Human Rights – the right to respect of private and family life, which was incorporated into our Human Rights Act 1998.

We know that in some professions, there is a precedent for mandating certain vaccinations e.g. Refuse teams are often contractually obliged to maintain a regular vaccination for tetanus and other illnesses. But these are well established vaccines that have a proven track record. The NHS doesn’t mandate the Seasonal Flu vaccine for its front line staff and we are yet to hear of their position on the COVID vaccine.

So if you did seek to mandate the COVID vaccine and dismiss for non-vaccination, an employment tribunal would focus on whether an employer’s actions were fair and reasonable given the circumstances. The role the employee undertakes may be a material factor so that those in health and care roles may have a higher bar than those in support functions like HR.  In fact, those in front line care roles may find that employer insurance requirement effectively do mandate vaccination. So a one size fits all approach won’t work.

The Tribunal is also likely to consider what other actions the employer took to support their employee before moving to dismiss and there are some suggested actions later in this post.

Once the reasonableness of the expectation to be vaccinated is examined then the tribunal will turn to consider the reason behind an employee’s refusal. An employee who refuses a vaccine on medical grounds would have a reasonable cause to refuse. But where does the line of reasonableness get drawn? What about an employee who refuses any and all vaccines? What about an employee who has concerns over the speed at which the COVID vaccine has been developed? What about an employee who has concerns over the long-term impacts of the COVID vaccine? All these beliefs and concerns can be genuine and deeply held. So, an employer dismissing an employee for refusing a COVID vaccine could be straying into the realm of discrimination on the grounds of belief.

Now it would be down to the tribunal to determine whether any of these beliefs would be capable of being a belief under the legislation that is capable of being protected. And while we may all have our own views on the validity of the concerns people have, the tribunal will be tasked with determining whether the belief has certain level of cogency, seriousness, cohesion and importance, that means that it is worthy of respect in a democratic society and it must not be incompatible with human dignity.

So what can employers do?

Educate, Encourage, Plan

A communications plan that aims to counter any misinformation. It should seek to allay any concerns or fears associated with the vaccine – the apparent short period of time it took to develop a vaccine and get it to market, the long-term impact of the vaccine, what the vaccine contains and whether it is appropriate for different groups.

Individual Risk Assessments that seek to understand an employee’s risk and personal concerns to identify any issues that may arise from non-vaccination.

A policy that sets out the employer’s approach to managing those who have not been vaccinated this might include long term PPE requirements or seeking redeployment opportunities away from high-risk services.

If, having tried all of the above, an employer determines that there is no option but to dismiss, then at least the employer will have the evidence to demonstrate they considered all other possibilities before dismissal.

* Conducted between 14 December 2020 and 14 January 2021 by HRLocker a cloud-based HR software company.