Can employers contractually insist that employees get the COVID-19 vaccine?
The subject of how employers should respond to those employees who refuse the COVID-19 vaccine is quickly stirring up a lot of heat.
The CEO of Pimlico Plumbing, Charlie Mullins, got his fair share of column inches when he announced last week that he will be making it a contractual requirement for new staff to get the COVID-19 vaccine. He instantly provoked a lot of controversy and cries of ‘you can’t do that!’ from legal experts.
In this article we look at whether rolling out the COVID-19 vaccine really is as simple as ‘sticking it in the contract’.
What is an employment contract?
This may seem an odd question to start off with but its important we all understand exactly what an employment contract is designed to do.
A contract is an agreement, usually between two parties and in the context of employment it is an agreement between the employer and the employee.
The contract sets out the principal main terms of what the employee is required to do during their employment, such as their job title, the specific times they are expected to turn up, how many hours per week they are expected to spend doing that work and what they will get in return, such as the rate of pay, the number of holidays and any benefits etc.
Is it possible to make changes to the contract?
The employee can request changes to their contract. For example, asking to change their shift pattern, asking to reduce their hours or asking to work from home, this is known as exercising their right to make a flexible working request. More details on flexible working requests can be found here.
The employer can also make changes to the contract of employment, providing there is a sound and robust business reason for doing so. For example, seeking to vary the start time of an employee’s shift due to changes to the business opening times.
There are some exceptions, such as making changes to a contract due to a TUPE transfer or making changes that are discriminatory, for example introducing a new benefit which excludes part-time staff but in principle, yes, they can be changed.
So, what about the vaccine, surely there would be a robust business reason for making it a contractual requirement?
This is where is gets tricky.
The issue here is that the vaccine programme is voluntary. The government are strongly recommending that people get it of course but the bottom line is that no-one can be pinned to the ground and have a needle jabbed in their arm. So, if the government cannot insist, employers will be no different.
If you did try to introduce this into the contact of employment for existing staff, you would legally be required to have a consultation to introduce this change.
Some may agree but you will find that many will not. Usually if, after consultation to change contractual terms, an employee refuses to agree with the proposed changes they would have their contract terminated and a new one enforced. This would result in the employee continuing to work but under some form of protest or they could have the contract and their employment terminated.
The reason for the termination of the contract comes under one of the five fair reasons for dismissal, namely, ‘some other substantial reason or SOSR. The substantial reason in this instance would be their refusal to accept the change to their contract.
Is this legally sound?
If the employer has carried out a fair consultation and has a robust and justifiable business case for making the change then more than likely yes, it will be fair.
Herein lies the problem; its mainly an ethical one and the same problem we keep butting our heads against, is it reasonable to force someone to have a vaccine? On the surface of it and given the vaccine rollout is in its early stages, it would appear not to be a reasonable ground to change an employment contract. So, the risk is that the SOSR dismissal could end up being an unfair dismissal.
I’m not ‘forcing’ anyone to have the vaccine, I’m saying that having the vaccine is their choice but by refusing to have it, they won’t be able to continue to work for me. What’s the problem?
As Charlie Mullins has said, ‘no jab, no job’. He’s come under attack from all angles but he has had some support.
Consider that statement for a moment, ‘no jab, no job’ and that’s the reality. If you don’t have the vaccine, you will lose your employment. A bit extreme isn’t it and again it presupposes that all of those refusing the vaccine are conspiracy theorist ‘anti-vaxxers’ when they are not.
They may have a disability or a severe allergy and by forcing a change of contract, you head straight into a discrimination claim.
Ultimately, you may feel justified in doing what you’re doing but changing your contracts will not necessarily safeguard your company from tribunal claims.
What about the care sector? We have a duty to protect our service users.
The government and your regulatory bodies are coming under increasing pressure to respond to these very legitimate concerns.
It’s unlikely that the CQC and their equivalents, along with the government, will state that its mandatory to have the vaccine.
Instead, they may publish guidance and recommendations stating it is advisable for those in the care sector to have the vaccine. If they do, the responsibility will still fall on to employers and whether that will leave the gate open for things like the introduction of ‘COVID-19 Vaccination Policies’ and forced contractual changes is another matter.
In addition, we don’t yet know what the risks are for vulnerable service users who have had the vaccine being cared for by those who have refused it. As ever, every case will need to be assessed on its own merits together with the needs of service users and medical guidance.
Employees may just want to wait until more is known about any possible side effects, they may wish to seek more advice from their medical practitioner, but one thing is for certain, making it contractual to have a vaccine will not make it automatically enforceable.
Instead, employers run the risk of running headfirst into a brick wall by introducing contractual changes and policies which are at best premature and at worst completely unenforceable and in some instances a one-way ticket to an employment tribunal.
At the moment, the vaccine rollout is in its early stages and the truth is no one really knows how this will pan out. If you start changing contracts and introducing polices now chances are you will create more problems than you are trying to solve by whipping staff up into a frenzy and causing more resistance to the vaccine programme.
Finally, there can never be a one size fits all approach to something as emotive as a vaccine programme and changing contracts will not provide the magic answer to this.
It is far better to take a step back, remember that every case is different and should be assessed on its own merits having sought legal advice from Avensure.