Following a recommendation from the Medicines and Healthcare Regulatory Agency (MHRA), the UK has become the first country in the world to approve the Pfzier/BioNTech vaccine for widespread use. 40 million doses of the vaccine (enough for 20m people) have been ordered, with 800,000 of those being available from Tuesday 8 December. Care home workers and other frontline health and social care staff are to get the vaccine first, along with those people in society most vulnerable to the virus. This article considers the potential issues surrounding Covid-19 vaccines in an employment context.
In the UK, there are around a dozen vaccines currently in final development stages. On 9 November 2020, Pfizer and BioNTech were the first to announce that an interim analysis demonstrated that their vaccine candidate against Covid-19 is 90% (95% as of 18 November 2020) effective in protecting people from Covid-19. The following week, US company Moderna announced that its Covid-19 vaccine is 94.5% effective and expects it to be available outside the United States in 2021. A vaccine produced by Oxford University has also proved successful in trials.
The development of an effective Covid-19 vaccine has offered many a beacon of hope that this pandemic will soon be over, or more manageable at least. Whilst the latest announcement that the Pfizer/BioNTech Covid-19 vaccine has been approved for widespread use in the UK, there is still much to be confirmed. For example, Nadhim Zahawi, the Government’s current Secretary of State (Minister for COVID Vaccine Deployment), has said that, whilst being vaccinated would not be compulsory for the general population, businesses such as pubs and restaurants might require evidence that customers have been vaccinated before allowing them onto their premises. In the coming weeks, we expect further guidance to be published on this topic, which will hopefully include specific advice for employers, to clarify the Government’s position.
In accordance with section 2 of the Health and Safety at Work Act 1974, an employer has a duty to take all reasonably practicable steps to ensure the health, safety and welfare at work of all its employees. In light of this, some UK employers may have a duty to offer a COVID-19 vaccine for health and safety reasons should a vaccine become readily available, particularly in sectors where employees are at a materially increased risk of contracting COVID-19 because of the nature of the work that they undertake (e.g. frontline health workers).
The Prime Minister has confirmed that there will be no mandatory inoculation, stating, “that is not the way we do things in this country”. Indeed, there is an argument that compulsory vaccinations could interfere with the employees’ human rights. If vaccination does not become a Government requirement, it is unlikely that an employee could be successfully prosecuted for not having one. Having said that, contractually, it could be argued that an employee who is under an implied duty to act in the best interests of his employer, could be in breach if they do not take reasonable precautions not to infect customers or other employees. This argument is much more likely to be viable in sectors dealing with more vulnerable individuals. It is not as likely to hold water for employers that do not operate in the health and social care arena.
It is also important to bear in mind the knock-on effects on employee relations of any decisions or policies made. In general terms, it is unlikely that an employer-mandated vaccination programme would be well received by employees, particularly when the vaccination is in such early stages of its rollout. The best course of action, at least at the present time, would be for employers to encourage employees to get vaccinated, by rolling out awareness campaigns on the benefits of doing so.
Generally speaking, an employee is required to carry out management instructions that are reasonable, and an employer may be able to dismiss an employee on the grounds of misconduct for failing to carry out reasonable instructions. Given that the Government is not going to mandate vaccinations, an instruction to take the vaccine is only likely to constitute a reasonable management request in the health and social care sectors. This is because there is a clear requirement to balance the duty of care toward third parties with those of employees.
Some workers might be hesitant about getting a vaccine or feel uncomfortable about their employer having a say in their medical decisions. As indicated above, it is unlikely that employers will be able to compel their employees to get vaccinated, although there may be some exceptions in high-risk sectors. Therefore, dismissing an employee because they refuse to take a vaccine is likely to open the door to unfair dismissal claims – unless there is a valid reason for requiring a vaccine; for example, in some parts of the health care sector. In those circumstances, an employee’s refusal to take the vaccine may amount to an unreasonable failure to comply with a reasonable management request. The question of what is unreasonable for this purpose is to be assessed having regard to the particular circumstances of the specific employment relationship.
Another factor employers may need to consider is whether an employee’s reason for refusal is due to a religious or philosophical belief. Under the Equality Act 2010, it is unlawful to discriminate against anyone at work because of religion, religious belief, or philosophical belief, or lack of religion or belief. Certain religions have beliefs which limit the use of medical interactions. There is also the possibility that the “anti-vaxxer” movement could seek to contest that their views amount to a ‘philosophical belief’ worthy of protection. Finally, questions have been raised about the make-up of the vaccination itself. The live bacteria in vaccines is often surrounded by animal-derived gelatine (usually pork). This may affect uptake of the vaccine amongst individuals of certain faiths.
There is still a great deal of uncertainty concerning not just the Covid-19 vaccine itself, but also the impact that any vaccination programme will have on the workplace.