The news has broken of a government U-turn on mandatory vaccinations for staff in both registered care homes and health and wider social care settings in England. We consider what impact this latest development may have on “no jab no job” policies introduced by private and third sector employers.

What’s new?

In November 2021, regulations came into effect requiring all CQC registered care homes to ensure that, subject to exemptions, all persons crossing the threshold of their premises had been vaccinated. In January of this year, the regulations were amended to extend vaccination as a condition of deployment to all frontline NHS workers. Due to come into force on 1 April 2022, the last date for workers to get their first dose to ensure that they were fully vaccinated in time would have been 3 February 2022.

However, in a statement to Parliament on 31 January 2022, the Secretary of State for Health and Social Care Sajid Javid declared that “while vaccination remains our very best line of defence against COVID-19…it is no longer proportionate to require vaccination as a condition of deployment”.

The prospects

The starting point for analysis is that, although this has been the subject of parliamentary debate, there is currently no prohibition against employers requiring that employees are vaccinated. The danger lies in the threat of provisions within the existing framework of UK employment law being utilized as a shield against compulsory vaccination. As generally an untested matter, we consider the areas which seem to presently pose the most risk.

Disability discrimination

The medical exemption framework for vaccinations is one which employers should mirror in any mandatory vaccine programs. The regime provides a clear reference point for assessing whether employees should have exempt status under a workplace policy. Qualifying employees will have passed the assessment of a doctor, specialist clinician or midwife. Little scope is then left for employees to argue discrimination on disability grounds, being that the basis of any contention would essentially be that of unsound medical assessment.

Religious belief

Resistance to mandatory vaccination may also manifest in the form of arguments on the grounds of religion or belief. The scope for arguments based on religious beliefs is wide. Notably, it seems that some initial concerns within religious communities have been alleviated by dissemination of verified information on the development and constituents of vaccines. It’s also of note that, seemingly, few religious denominations oppose vaccination, with a variety of faith leaders in the UK showing support for the vaccine roll out. On one view, it follows that it may be a significant mission for arguments based on religious belief to form a compelling challenge to a vaccination policy.

Philosophical belief

The spectrum of ideas which might be presented as protected philosophical beliefs in opposition to mandatory workplace vaccination is broad. The question is which, if any, of the notions would pass the rigorous legal test to be classified as a philosophical belief. The “Grainger” criteria set out by the Employment Appeal Tribunal (“EAT”) are that the belief must be as follows:

1. genuinely held;
2. not an opinion or viewpoint based on the present state of information;
3. one as to a weight and substantial aspect of human life;
4. one with a certain level of cogency, seriousness, cohesion and importance; and
5. worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

A recently published Tribunal judgment (case no. 2413947/2020) relating to an employee’s fear of catching Covid-19 has served as a reminder of the high threshold for philosophical belief claims. The employee argued that her refusal to return to work was based on a belief which was expressed by her as “a fear of catching Covid-19 and a need to protect [her]self and others”. While the Judge found that the employee’s concern was genuine, it failed to pass the second hurdle. The Judge considered that the employee’s fear did not amount to a belief but rather it was “a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat”.

It’s possible that employers may encounter disagreement from individuals whose ideas fall within the range of vaccine hesitancy, vaccine resistance and anti-vaccination. Looking to the legal tests, a pertinent consideration will undoubtedly be the information underpinning the proposition. In that sense, it would be expected that any notions based on myths and misinformation would be met with highly critical judicial assessment as to whether they meet the required level of cogency, seriousness, cohesion and importance.

Unfair dismissal

Where the “no job” limb of a policy becomes operative, an employer is not without risk. As yet, there are no decisions on this in relation to private or third sector employers outside of the care and health sector. However, the January 2022 judgment in Allette v Scarsdale Grange Nursing Home Limited (case no. 1803699/2021) is helpful for analysis. A care home assistant, who refused a management instruction to be vaccinated, was held to be fairly dismissed. The dismissal pre-dated the compulsory vaccination regulations. In applying the range of reasonable responses test to the specific circumstances of the case, material factors which the Tribunal took into account included that:

• at the material time of the dismissal, the pandemic was in a phase of rapid incline both in terms of infection and deaths; and
• in a care service environment the employee was surrounded by highly vulnerable individuals, with a number of residents having recently taken ill or dying from COVID-19.

The Tribunal clarified that the decision “cannot and should not be taken as a general indication that dismissal for refusing to be vaccinated against COVID-19 is fair”. Nonetheless, the judgment is an indication that the existing Covid-climate and the associated risks in the workplace environment are likely factors that a Tribunal will consider.

Takeaways

Presently, this area is an uncharted territory of risks. Navigating the course will require an approach which is responsive to the evolving state of the pandemic and aptly tailored to the setting of each workplace.

For the time being, it may be that as a lesser alternative to no jab no job policies there is an uptake in the trend of employers removing company sick pay for unvaccinated employees required to isolate as close contacts of positive COVID-19. Of course, this approach is also not without risk, and employers will need to consider how to ensure that application is non-discriminatory.

As throughout the pandemic, this is a dynamic area which can be difficult for both employers and employees to grapple with. Employers should be prepared to re-visit, reconsider and revise policies to ensure that their measures do not fall foul of their legal obligations, and to contact us for support in this area and all other aspects of employment law support.