Vaccine policy could be minefield for employers - Dr Anne Sammon

Can UK employers require staff to be vaccinated is a question that has been doing the rounds since the Pfizer vaccine became available. My experience is that clients start the discussion thinking they might want to mandate, or very actively encourage, employees to be vaccinated, but having had legal advice tend to back-track and decide that actually they will probably remain more agnostic.

The Pfizer/BioNTech vaccine

That's because there is a whole myriad of legal risks associated with requiring employees to have vaccination. One of the issues is that we don't yet know what impact vaccination has on transmission rates. If evidence emerges that suggests vaccination can lower the transmission rate, then that will give some employers in certain sectors more scope to be able to justify why they might want their employees to be vaccinated.

For example, in the social care sector, if vaccination has a positive impact on transmission in that it lowers that transmission rate, then employers may decide that it's really important for their staff to be vaccinated because that will lower the risk of transmission from the staff to patients and vice versa.

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The other thing that we're starting to see is employers thinking about whether or not the “anti-vax” movement could actually be a protected belief, and therefore something that they need to be mindful of when they're looking at discrimination angles.

Dr Anne Sammon, Partner and employment law specialist at Pinsent Masons

As we know from some of the cases around veganism and environmental beliefs, establishing that something is a protected belief is very fact-specific, so the employee involved will have to show that this belief is core to their way of life and that what they do throughout their life is informed by that particular belief. That means that it is very difficult to say, absolutely, whether an anti-vax belief will or it won’t be a protected belief - it very much depends on the circumstances and the way in which the individual manifests those views.

There is also a risk of indirect discrimination. We're seeing a vaccine programme which is based on how old someone is. So if an employer is forcing people to have vaccination when the NHS makes it available, that's going to have a bigger impact on the older part than the younger part of their population, even though it's an apparently neutral provision. In my view, that means there is a real risk of an age discrimination claim, through indirect age discrimination, if employers require employees to take up the offer of vaccination. That risk may change over time as larger numbers of the population are vaccinated and we see whether or not there is disparate treatment between the different groups of employees based on age.

Employers who choose to dismiss employees who refuse a reasonable vaccination request would still have to follow a fair procedure. Again, this going to be very fact-specific as the question will be whether the employer has given a “reasonable instruction" and whether the refusal is "reasonable". That's going to depend on the employee, their individual risk profile, whether they've got any underlying disabilities, and whether there are any other reasons that they might not want to take the vaccine.

So employers will have to look at every case on their specific facts and details and carry out an assessment, and part of that assessment involves talking to the employee and understanding their rationale for refusing the vaccination and taking that on board and properly considering it.

Dr Anne Sammon, partner and employment law specialist at Pinsent Masons