There is no doubt that Pimlico Plumbers’ plan to change their employees’ contracts to ensure that all staff must have a Covid-19 vaccination is controversial, but it is also potentially opening up a can of worms.
An employer cannot lawfully force individuals to be vaccinated. The Public Health (Control of Disease) Act 1984 states that members of the public should not be compelled to undergo any mandatory medical treatment, which includes vaccinations. In certain sectors where inoculations are required to do the job for example in shipping or to travel overseas, then it could be a lawful requirement to have it as a contractual requirement.
However, it is a new vaccine and with the fake news stories circulating, some staff may be unwilling to have the vaccine for a variety of reasons. Staff who refuse to have the vaccination and are dismissed, are likely to have a good basis for bringing successful claims for unfair dismissal and potentially direct and indirect discrimination too – if they have more than two years’ service. If they have less than two years’ service, they could bring discrimination claims.
It is worth noting that unlawful discrimination covers a wider group than just employees under the Equality Act 2010. It can mean that contractors, freelancers and workers could bring discrimination claims if a business tries to force them to be vaccinated and they fall into one of the protected groups.
Who could bring a discrimination claim?
There are nine protected characteristics under the Equality Act 2010 and individuals who are covered by one of those could bring claims. The protected characteristics are sex, age, disability, race, religion or belief, pregnancy and maternity, gender orientation and marriage and civil partnership.
Some individuals may not be able to have the vaccine because they are pregnant or breastfeeding. They could bring claims based on their on sex and/or pregnancy and maternity if it is a requirement that they must have the vaccine. Likewise those who have a suppressed immune system could bring claims for discrimination on the basis that they have a disability. An employer should also keep in mind that with disabilities there is an additional requirement to consider and make reasonable adjustments too if someone is unable to have the vaccine.
Employers also need to be aware that staff who may have a religious or philosophical belief could bring claims if they try to compel them to have the vaccine or make it a requirement which it is not lawful. Some staff may have made decisions not to be vaccinated due to fake news. For example, ethical vegans may be concerned that some vaccines contain animal products. The Department of Health has tried to make it clear that the Astra Zeneca and Pfizer vaccines do not contain animal products. This may not be enough to convince them and recently it was established that ethical vegans could be regarded as having a belief and therefore could bring discrimination claims.
An employer should take specialist advice first because they try to compel staff to have the vaccine and be very cautious about dismissing an employee or subjecting them to less favourable treatment if they refuse to have it. Employers can encourage staff to have vaccines and provide information to enable them to make informed decisions. If an employee is reluctant to have a vaccine they should explain the reasons why to their employer and try to reach a compromise.