Can you Dismiss an Employee who is not Vaccinated against COVID-19?Published on: 06 August 2021
It was widely reported on 6 August 2021 that CNN dismissed three employees for attending one of its offices without having been vaccinated against COVID-19. Reportedly, CNN had informed its employees that vaccines were mandatory if they report to the office or out in the field where they come into contact with other employees. Whilst this occurred in the United States, which has a different legal system to the UK and different employment laws, it raises the question: can an employer take a similar approach in the UK?
As we reported in our recent blog, it will be compulsory for care home staff in England to be vaccinated from 11 November 2021, unless they have a clinical reason for not being so. But in the absence of a vaccination being a legal requirement, can an employer have a mandatory policy and dismiss an employee who refuses to get vaccinated?
In the UK, employees with over two years’ service have unfair dismissal protection.
Tribunals are likely to consider that it will be unfair to dismiss an employee for not being vaccinated, unless it is essential and necessary for the employee to carry out their role. A lot will depend on the type of workplace and the level of risk, and in particular whether there is contact with clinically vulnerable people.
One scenario which might make a dismissal of an employee who refuses to be vaccinated fair is where there is pressure from third parties, e.g. if a client or customer of the employer will only allow people on site who are vaccinated. If this were to arise, in the case of employees with more than two years’ service, the employer would still need to look at the possibility of alternative work for the employee and also make reasonable representations to the third party before proceeding to dismiss.
No minimum length of service is required for an employee to bring discrimination claims, and protection is also afforded to job applicants during the recruitment process.
Certainly, to apply a policy of mandatory vaccination to those who have a clinical reason for not being vaccinated will expose employers to claims of unlawful indirect discrimination on grounds of disability.
It is also possible that those with certain religious or moral objections to the vaccine might bring claims if they are dismissed, or overlooked for a position, for refusing to be vaccinated. For example, some religious groups may be concerned that animal products have been used in the vaccines. Although there is no gelatine in the COVID-19 vaccines currently available, shark liver oil is being considered as an adjuvant for one of the new vaccines. Some people may reject the vaccine because embryonic tissue was used to test or develop the vaccine. Others may have a strongly held belief that vaccines are harmful to public health (anti-vaxxers), and although this is unlikely to amount to a protected belief, such claims can still be time consuming and costly to defend.
If there is found to be indirect discrimination on a protected ground, this will not be unlawful if it is justified as being a proportionate means of achieving a legitimate aim. The legitimate aim part of the defence should be straightforward, as the employer would be seeking to protect the health and safety of staff, clients/customers and other third parties. However, employers outside of the health and social care sectors would struggle to persuade a tribunal that a mandatory vaccination policy would be a proportionate means of achieving that aim, as there are less discriminatory methods that could be applied such as regular testing and implementation of COVID- secure guidelines.