Calling the shots – what the law says about vaccination and employment

Charlie Mullins has been at it again. The chief of Pimlico Plumbers has garnered headlines for pledging that, should a jab be readily available, his company would refuse to hire any job applicant unable to provide proof of a covid-19 vaccination.

Whatever one’s sentiments regarding so-called “no jab, no job” arrangements, the message would have hit home for his client base. For indeed the majority of Pimlico’s work takes place in private residences.

Does he have a point? Methods imposed by employers to protect workers from the coronavirus and decrease transmission can lessen productivity and, as a consequence, add cost and delay completion. Moreover, the staunchest protocols may not fully avert the risks of the coronavirus spreading on site or personnel being unavailable to work due to illness or isolation requirements. It is clear why commerce sees mass vaccination as the way out.

The default option, plainly, is to wait it out. Boris Johnson has promised to offer every adult a dose before August. The government would prefer to achieve herd immunity, at which point the coronavirus should stop proliferating. Given its high transmission potential, this may require almost the whole population to become immune. That might take a year and the timeframe could be pushed back by constraints in vaccine supply and vaccine refusers. The latter includes not only anti-vaxxers but the vaccine-hesitant, who may be deterred by safety fears.

Contract terms could perhaps be introduced for new hires to permit them to be dismissed or otherwise sanctioned for refusing a covid-19 jab 

“Offer” is the operative word in the prime minister’s declaration. No country has made it mandatory to accept a covid-19 vaccination. But construction has endured a year of tumult and, for some, a return to normal cannot come soon enough.

Moreover, legislation imposes a duty on employers to ensure the health, safety and welfare at work not only of employees but of the public, as far as is reasonably practicable. In this light, encouraging vaccinations and explaining their benefits to workers are not only rational behaviours, they may be identified by a risk assessment as necessary actions to protect the workforce and others.

Going further and actually instructing staff to take the jab, however, is fraught with difficulty. People cannot be forcibly injected, obviously, so it becomes a matter of workers’ rights. Contract terms could perhaps be introduced for new hires to permit them to be dismissed or otherwise sanctioned for refusing a covid-19 jab within a certain period of being asked along to one.

Construction companies may also be tempted to manage risk by restricting the activities that unvaccinated staff can carry out or the working areas they may access. The government has principally called people for inoculation in age order. Favouring a vaccinated person over one who has not yet been invited for a jab could be considered indirect discrimination on the basis of age. That is a protected characteristic under the Equality Act 2010 so, if a long-serving employee resigns as a result, a claim for constructive unfair dismissal could follow. Other individuals may have earnest reasons to decline a jab – for instance, pregnancy, medical conditions or particular religious or philosophical convictions.

An organisation may be able to provide objective justification that specific discriminatory conduct is proportionate

An organisation may be able to provide objective justification that specific discriminatory conduct is proportionate. Such a defence could possibly be raised where an employee has been instructed to take a vaccination due to work necessitating being in the vicinity of vulnerable residents in a care home or where close-up tasks with others are extensive and unavoidable. It would first have to establish that non-discriminatory alternatives, such as use of PPE, regular coronavirus testing or other adaptations were not easily accessible or sufficiently effective. It goes without saying that inoculation would not obviate the obligation for safe operating procedures to remain in place.

While vaccines have been the topic of heated emotions for over two decades, the latest survey of coronavirus vaccine willingness by Imperial College/YouGov found that the UK figure had risen to 85%. If this holds true, it’s near to the likely proportion of the population that would need to be immunised to achieve herd immunity. Notably, that should reduce the desire for companies to bring in swingeing measures, though such a high level would have to be sustained if it turns out that further vaccine shots are required due to variants or antibody immunity decreasing quickly and significantly.

These have been challenging times for everyone. Given the importance of balancing wider concerns with individuals’ sensitivities, businesses must give careful thought to their longer-term covid-19 containment policies.

Francis Ho is a partner at Penningtons Manches Cooper