There has been a rise in enquiries about the risks employers face when clients require them to ensure everyone working on their site is vaccinated against Coronavirus and that unvaccinated individuals are not engaged on their contract. The debate about whether companies should adopt a ‘no jab no job’ policy has been taking place nationally.
Employers in favour of this might argue that they are protecting health and safety and stopping the spread of Coronavirus, or, where they are headquartered in countries that have opted to mandate such a policy, they are replicating their Government’s approach in the UK.
The issues from a UK legal perspective are that:
- Vaccination status is sensitive medical information under GDPR and therefore, whilst an employer can ask employees to confirm their status, they cannot force them to tell them. If the employer dismisses the employee or takes any other action against the employee because they refuse to disclose their vaccination status, they may bring a claim for dismissal / detriment for having asserted a statutory right. In addition, there is technically nothing preventing someone from claiming to be vaccinated when they are not and no way of checking this without breaching GDPR;
- There are many reasons why someone might choose not to get vaccinated, including health conditions or fears about what effects the vaccine might have on fertility. Uptake has generally been lower amongst younger people and those from some ethnic minority backgrounds. It could be argued that a ‘no jab no job’ policy is indirectly discriminatory on the basis of age, race, sex and disability;
- It could be argued that a ‘no jab no job’ policy fits the legal definition of coercion and is therefore contrary to human rights provisions;
- The UK Government has not made vaccination a condition of employment for the most part and it is unclear whether any attempt to do so outside of care home settings, which involve contact with vulnerable people, would survive legal challenge. Therefore, the client is accepting the risk of claims by implementing such a policy, as is the employer who carries out potentially unlawful instructions from the client.
For the avoidance of any doubt, this article does not take any side in the debate. The potential claims outlined above may or may not be successful if brought. This article is purely to highlight that there are potential risks for employers and their clients.
If, therefore, the aim is to keep legal risk to a minimum, then we generally recommend that employers and their clients take a much more cautious approach to avoid becoming a test case.
So, how should employers deal with requests by clients to bar unvaccinated individuals from client sites in order to minimise risk?
Ultimately, this could be regarded as third party pressure by the client to remove unvaccinated individuals from the client site. This can potentially be a fair reason for dismissal, but only if the employer has attempted to persuade the client to alter their course unsuccessfully and no alternative assignment or work can be found.
Our suggested process would be:
- Ensure that your privacy notices, contracts and handbooks are GDPR compliant in relation to sensitive personal data and have them updated and reissued if necessary.
- Ask for the individuals assigned to the client to confirm their vaccination status in the first instance:
- If all are provided and all have been vaccinated, this can be confirmed to the client, but this should be done with any personal data redacted or by giving a written confirmation that, to the best of your knowledge and belief, all employees being sent are vaccinated.
- If any refuse or are not vaccinated, remember that you can try to persuade them round but do not force them. Make clear you understand it is their right to refuse to provide the information.
- If any of the employees you ask are not vaccinated or unwilling to provide the information, speak to the client, explain the potential legal risks of the policy for them and your company and see if an alternative, less risky course of action can be agreed.
- If the client agrees to alter course, you can inform the employees of the newly agreed measures and what they will now be expected to comply with.
- Take legal advice before agreeing to any alternatives, as treating vaccinated employees differently from those who are unvaccinated could, in itself, be argued to be discrimination. Examples of rules that may be subject to challenge are requiring only unvaccinated staff to take lateral flow tests or to socially distance and wear masks.. Although an employer might try to justify the difference in treatment by arguing that such measures are less invasive than vaccination and therefore proportionate, we do not know what decision a tribunal might reach.
- If the client is unwilling to alter course, or if they do but the employees will not agree to the amended requirements, you may have to consider redeploying them to another client site. If that is not possible, initiate a disciplinary process to consider whether they should be dismissed for some other substantial reason because of the third party pressure.
However, it is clear that there are multiple claims risks and, whilst risk can be reduced, it cannot be guaranteed that an employee will not try to bring discrimination/human rights/unfair dismissal claims.
In addition, tribunal decisions in third party pressure cases are extremely fact sensitive and the courts expect significant efforts to be made to persuade the client round and consider all the alternatives before they will find that any dismissal was fair.
We therefore strongly recommend taking specialist HR and employment law advice as soon as you receive a request from a client to ensure that only vaccinated employees are sent to your client sites. This will help you understand the legal risks specific to your situation and to follow the right processes to minimise legal risk to you whilst ensuring that employees are treated fairly.
For further advice, please contact your local Moore adviser.