Can we mandate that employees get the vaccination?

Posted in : Seamus Says - Employment Law Discussion on 7 May 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Coronavirus; Vaccination; Health and Safety

Scott: "We are currently risk assessing for a safe return to work to meet the needs of vulnerable clients, many of whom who are awaiting a return to face-to-face service provision. Whilst our frontline workers provide a direct service to clients, this would not be possible without the support of the various departments, including management and HR, etc. We currently have a workforce where 1 in 10 of those employees have chosen not to be vaccinated. Can you advise on the latest guidance regarding staff being vaccinated?"

Seamus: That is interesting in the sense that we have an organisation here that is saying that they have spoken and had discussion with their staff and that they're aware that around 1 in 10 have decided not to take the vaccine.

I know that the vaccine programme has been excellent in Northern Ireland. We've really benefitted from the hard work that has been put into it. There are people that simply haven't got their call yet to get the vaccine, and we know that it's been done on age groups and priority and respective vulnerability and things like that. So you need to be careful, first of all, that you're not putting someone into the point of they're refusing to get the vaccine whenever maybe they just haven't actually been called to get their vaccine yet and they may be keen to get it.

But I do think as a first port of call it is helpful for employers to try to ascertain and get information from their employees in relation to what their stance is related to the vaccine.

Some may feel that that's a step too far in relation to invasion of a person's privacy or their home life or something along those lines, but my view on it is that employers should be asking the question. If there's a refusal to give an answer or someone says that they're not comfortable with it, that can be teased out at a later date, but I think first and foremost you need to be informed.

Where we get really down to this issue is with an organisation that has a lot of face-to-face contact that needs to happen and their problem is that they have 1 in 10 people that they would view as at-risk . . . And at-risk isn't just necessarily about the person putting themselves at risk, but it's about that person maybe not having the vaccine.

We know that even with the vaccine you can still catch it and you can still transmit COVID, but it's about risk assessing and looking at the health and safety of not just the employee but also other employees within the organisation, and then maybe your service users or clients or customers, whatever industry that you're in, in relation to protecting those.

To run down through it quickly, I thought that it might be helpful . . . I don't want to focus too much on the easy parts of the question because I think we're all fairly clear about what the situation is. But it might be useful if we have a discussion and perhaps even, Scott, a bit of a debate in and around what employers should and should not be doing in relation to those employees that don't want to take the vaccine.

Scott: Just to interrupt there, Seamus, there are two aspects, I suppose. There are the existing employees and what you do with those where, potentially, you may be looking at dismissal as an ultimate option, if you like. Then you've got this thing here, which is "no jab, no job" for new applicants. They're slightly different. Well, not slightly. They're quite different, I suppose, in the responses that those individuals could make if you're not given a job because you refuse to get a vaccine or if you're dismissed because you refuse to get a vaccine.

So there are a number of things that employers could do before you get to that stage, and I think that's what you're looking to discuss at the moment. Hopefully, the audience will have a few questions about that as well.

Maybe you can give us a bit of the background to where it lies, because when this question first arose, it was about whether employers can force employees. Can they vaccinate them? The fact is employers aren't vaccinating anyone. It's the Health Service, clearly, that's doing all of that. But can you take action if somebody refuses?

Let's deal with the background and then look at employees particularly. I think that would be useful. In the case of this employer that's come in here, there's 1 in 6 or 1 in 10 refusing to get vaccinated. What does an employer do there, depending on what they do?

We've just had a question in there about people who refuse to wear masks. We've seen a case in the last few weeks on that kind of line as well about an employee who refused to wear a mask, and there was pressure to dismiss from a supplier. "We don't want the person . . ."

So maybe give us a bit of the background, and then we'll have a look at the different options.

Seamus: Certainly, the position hasn't changed. We do hear pieces in the media from certain ministers, mainly English ministers, about vaccinations and about making them compulsory.

Ultimately, the Public Health Act of 1984 expressly provides that individuals should not be compelled to undergo mandatory medical treatments, which include vaccinations. So there isn't a situation where you can make the requirement to have a vaccine or to say that it's mandatory in respect of requiring your existing employees to have the vaccine. I don't think it's a situation that you can line your employees up and have someone come down and jab them against their will. That's just not a possibility.

Certainly, what you can do is encourage. You can inform. You can educate. You can facilitate, whether that is allowing employees time off or being flexible in relation to approaches.

Often, you get fairly short notice, specifically if you're getting jabbed at the GP. You can get the call the day before to say, "Can you come tomorrow?" I think it's about employers where they are looking at that flexibility and working with their employees in relation to that.

Mandatory vaccines are not something that in law is realistic.

Employees, then, that object to the vaccine, the types of issues that I am coming across are where the employee says there are medical reasons or there are certain allergies where they've been advised not to take the vaccine due to its ingredients. I mentioned earlier on about pregnant women or young women who are intending to become pregnant avoiding the vaccine.

The philosophical or religious beliefs . . . I don't think that either of us, Scott, are particularly convinced of the philosophical side of things, but the religious belief certainly is a possibility with the likes of certain faiths who have beliefs about vaccines or the contents of vaccines when it comes to animal products or gelatine or if the vaccine underwent animal testing. Those sorts of issues arise as well.

Then there is the general anti-vax belief. Some employees are just opposed to vaccinations and argue that they hold a valid philosophical belief. It's this idea that there is debate around that and whether employers need to be careful, whether they need to give proper consideration to employees with those viewpoints, or whether they take a view of, "Well, they read something on the internet or watched something on the TV last night and have now decided that they have a philosophical belief".

So there are all these sorts of issues, and they're the types of things I think looking forward . . . certainly with mass uptake at the minute. But whenever the vaccination process starts to slow, those will be the aspects I think that employers will be told by employees.

As I said, I don't think that there can be a situation at all where an employer can force an employee to take a vaccine. Really, then we're getting into this aspect of, "What are the alternatives for the employer and the employee if the employee is not going to take the vaccine?"

Bringing it back to the query or the question, you have somebody here that is dealing with possibly vulnerable people who certainly need to engage on a face-to-face basis, and there are genuine concerns arising for someone that is refusing to take a vaccine. One in 10 in the organisation are refusing it. Does the employer then need to look at a point of saying, "Well, look, if you're not going to take the vaccine, there are certain aspects of the role that you're not going to be able to carry out or perform until either we're told it is no longer a concern, or alternatively, we can facilitate it in some other way"? Whether that's use of PPE in the meantime.

It could be, for instance, that if you have someone that 50% of the role is dealing with vulnerable adults on a daily basis, it could potentially be the employer making the decision of, "That's not a role you can do any longer because it's placing yourself, our other employers, and our service users at risk, and we're going to redeploy you into another role".

Perhaps they even take a further step of saying, "We don't have any other work, and we can only offer you work on 50% of the availability that we have". That does seem to be a bit of a harsh stance for employees to take, but I think for certain employers in certain industries, there will be necessary decisions that need to be made.

I think a lot of that has to come down to discussion, consultation, explanation, and those sorts of matters going forward with the employee, and I think part of it has to be about consulting with the employee and looking at the job role and risk assessing those aspects of the role that can and cannot be completed.

Scott: Can I just come in there, Seamus?

Seamus: Certainly, yes.

Scott: A lot of the case law that's maybe relevant but slightly tangential, but still relevant, comes from the European Court of Human Rights. A lot of it looks at proportionality and whether there's anything you can do which is less severe than refusing somebody something.

There was a Czech case, the Vavricka case, I think it was called, where it was deemed reasonable to exclude children from preschool because the parents refused to have them vaccinated against polio that came out. There may be something in there that's of value.

But even within Northern Ireland specifically, the reason for dismissal if you went down that route would be, presumably, some other substantial reason. It is not that they're refusing a reasonable instruction, because it's not a reasonable instruction to get vaccinated and put stuff in your body. It would be because the employer has concerns about the employee who isn't vaccinated and the risk that that might pose to others.

That would still mean you'd have to go through the one, two, three procedures. You'd still have to discuss things. You'd have to look at alternatives and different options and things that are more proportionate and less severe than termination.

That's basically the bottom line with this, isn't it? You have to try all those things, because if you just go straight into, "Well, you're not vaccinated, so we're not employing you", then that's too extreme. That doesn't fit with the statutory procedures.

Seamus: Yep, exactly. And that is about looking at adjustments and alternatives. You can go through that process. You can work through that process for three weeks or four weeks with the employee and come out at the end where there just isn't any alternative but to say, "We no longer can facilitate them. We're going to have to look at dismissal".

Obviously, all of those steps need to be taken in consultation with the employee, and if you're coming through to a dismissal, you need to follow the statutory one, two, three procedure in Northern Ireland to ensure the fairness of it, because it's going to be automatically unfair if you don't do that.

We're talking about the real extreme side of things, but I think that, potentially, as we're looking at a return to work . . . I mean, I think CIPD have said government guidance is maybe to start filtering back into work in June, and that's going to be a very gradual approach. But these issues are going to arise at that point, and decisions are going to have to be made.

I think it's a completely separate issue where the industry or the way that you work has changed as a result of COVID, and maybe that brings around redundancies or different ways of working and things like that.

But specifically, I think you're right, Scott. These matters, and particularly that European Court of Human Rights case, the Czech case, talks about proportionality, and the court did consider proportionality as one of the key aspects, essentially what the Czech government's position was on the vaccine and whether it was proportionate.

They made a decision that, in fact, it was proportionate, and they found that there was no violation of Article 8 rights for the right to your private life. And this included an acceptance by the Czech state that they couldn't enforce vaccines.

Rather, what they did was they said that if somebody refused a vaccine . . . and there are certain exceptions to that in terms of health and everything else. But if they refuse it, they would be fined.

So there were two punitive measures, really. One was you would be fined. Second of all, your child wouldn't be permitted to attend education sentence if they didn't have the appropriate vaccines.

For me, it's an interesting case. Certainly, looking at the human rights side of things, it would be a case that would be relevant when you come to give consideration to the employment side.


This article is correct at 07/05/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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