Introduction

There are a number of implications for employers whose employees opt-out of the vaccinations for COVID-19. Several legal considerations should be made by employers, including: the duties an employer owes; whether vaccination has been mandated either by the employer themselves or via another channel; the type of undertaking the employer carries out; what an employer can do when it comes to dealing with the non-vaccinated employee; and the knock-on effect on the employee’s individual rights.

Employers’ Perspective

Employers owe a duty of care to both employees and those persons they deal with through their undertaking. During the pandemic, existing risk assessments and standard operating procedures simply had to be updated to mitigate the threat posed the virus. With an increase in the percentage of the population vaccinated against COVID-19, risk assessments should again change to reflect the reduced risk for vaccinated persons. However, this would operate on the assumption that the employees are being vaccinated at the same rates as the population at large.

Currently, vaccines are only given where individuals make an informed decision to consent to uptake. However, there is the possibility that the State or individual employers may mandate vaccination for employees. Employers are able to alter the terms and conditions of employment contracts, even where employees overwhelmingly disagree with proposed changes. Health and safety legislation also allows for employers to change policies in the same way.

Westminster has suggested they may make it a legal requirement for certain employees – namely in care homes – to be vaccinated. This may take pressure off employers as vaccination would no longer be mandated by them. However, no details have been put forward and it may still be for employers to enforce the law.  Holyrood has not been forthcoming in this respect. 

A vaccine mandate may come not from employers or Parliament, but from statutory bodies. The General Medical Council already recommends all doctors be vaccinated against transmissible diseases. Although not part of the employment contract, Stevens v University of Birmingham held that a breach of GMC guidance could be taken as a disciplinary procedure by the employer.

The Public Services Reform (Scotland) Act 2010 stipulates that care homes themselves must be registered instead of employees. They may, therefore, be more willing to push for disciplinary procedures to enforce vaccination to protect themselves from any future complaints. Where an employee opts out, they will no doubt be viewed as an increased risk in the workplace. Problems may arise where the risk becomes too great for an employer to reasonably accept, or potentially have them sanctioned by their professional body. The question, then, is whether opting out can be successfully dealt with as a disciplinary matter.

Employers may be able to rely on the flexibility of case law that is read alongside the potentially fair statutory reasons for dismissal. Certain employers may be able to rely on the approach Tribunals must follow, set out in Iceland Frozen Foods Ltd v Jones. A large employer, such as the NHS or Asda, may be able to easily redeploy unvaccinated staff to roles where transmission risk is much lower. Whereas dismissal may be the only practical option available to a small independent care home, that may be at risk of losing registration or custom due unvaccinated employees.

Another option available to employers, particularly in the health sector, is exclusion as detailed in Al-Mishlab v Milton Keynes Hospital NHS Trust, which concerned a surgeon whose work fell below expected professional standards. It may be possible for exclusion may be able to remove the unvaccinated employee from the role in which problems may arise. The Court did state, however, that exclusion could not be for an extended period and the employee must be returned to their full potential after the appropriate investigations have taken place. Importantly the Court emphasised that patient safety prevails over an employee’s personal rights against the employer and was not willing to order an obligation of work while patient safety was still in the balance.        

Employees’ Perspectives

One of the significant issues is how a potential mandatory vaccine and opt-out procedure would affect an employee. A number of issues arise in respect of human rights, patient autonomy and the effect on the rights of other employees in the workplace. Any interference with human rights during the pandemic has been justified by the wider concern for public health.  However, a mandatory COVID-19 vaccination requirement in the workplace strays into the territory of medical ethics and patient autonomy.

There is a great deal of protection afforded to employees under the Equality Act 2010.  This is where exceptions to mandatory vaccinations would have to be considered. The protected characteristics, such as disability, would be a consideration.

This would be classed as special category data under the General Data Protection Regulation and employers need to be careful where they tread with this. A problem could arise where the policy states that the employee must give a reasonable excuse for opting out, but that reasonable excuse happens to be a medical one which the employee has a right not to disclose.

Religion could be another potential reason when it comes to opting out. In the European Court of Human Rights case of Eweida v United Kingdom, an individual’s right to manifest their religion in the workplace is protected, despite what the employer’s policy might dictate.  However, from a different perspective, it is interesting to note the decision in the related case of Ladele and McFarlane v United Kingdom, where a registrar refused to deal with same-sex marriages.  It was held that the employee’s right to have her religious views respected, did not outweigh the duty of the employer to manifest equal respect for both heterosexual and homosexual couples.  Perhaps this could be applied in the vaccine context. The duty to protect the public health could potentially outweigh the individual’s right to respect for their religion or belief.

There has been much debate on the definition of belief in this context; the only definition in the Act being that belief means any religious or philosophical belief. Through the evolution of case law, certain criteria have emerged which expand on the definition. These are relatively broad, and it has been found that beliefs such as humanism, pacifism and vegetarianism are protected beliefs. It is worth considering the possibility that the belief that vaccines cause harm could be protected.

People who change their religion or belief are still afforded legal protection under the Human Rights Act and Article 9 of the European Convention.  Practically then, this means that an employee should not have to prove that they have held this belief for a specified period of time prior to the opting out.  This could present another problem however, as it seems that this leaves the belief aspect open to exploitation by employees. The ethical implications of an opt-out procedure cannot be overstated. 

It is apparent that the individual’s rights in the workplace are at the forefront of the debate.  However, the rights of the wider workforce are equally important. There could be a situation where an individual in the workplace is particularly vulnerable to the effects of COVID-19 and an unvaccinated employee could pose a real risk to their health. It could amount to discrimination to expect the vulnerable employee to make adjustments such as working from home, based on another person’s choice not to have a vaccine.

There is a serious question of how to weigh up the rights of one employee with those of another. Allowing employees to have freedom of choice to opt-out appears to be an amicable solution, but with this freedom, comes risk to the employer and to other employees.  The conflict arising seems to beg the question of whether the Human Rights Act and the Equality Act are still fit for purpose.   

Practical Implications

A possible tactic employers could use to increase vaccinations are incentives. This has been used in New York where you can be entered into a raffle for free state university education, Beijing with free eggs, and India with free gold nose pins. Employers will need to be careful when using incentives due to ethical and human rights concerns. People who would not normally have taken the vaccine due to their own beliefs but would with an incentive due to their financial situation, especially in comparison to those who are wealthier. Another incentive could be through sick pay. ACAS has suggested for there to be an enhanced rate for those who have taken the vaccine and who have side effects. There are also concerns for a type of reverse incentive as France is set to restrict access to businesses and certain public spaces to those recently testing negative or who are fully vaccinated. There is a fine line between an incentive, what can be considered a bribe, or even a punishment.

There is case law dealing with vaccine opt outs, however they involve children and there is nothing to compare with mandatory vaccination schemes for adults. Vavřička and others v The Czech Republic discussed a possible breach of Article 8’s right to private life as the parents did not vaccinate their children and as a result, were fined and the children were not able to attend preschool. Article 8 is a qualified right so it can be infringed. There was also a possible breach of Article 9 protecting their beliefs, however the court did not rule this applicable as the applicant did not meet the standard of sufficient “cogency, seriousness, cohesion and importance”. In the UK, an English appeal case discussed in obiter that it would be difficult to justify not giving the COVID-19 vaccination to children due to the principle of child’s best interests. Although not binding, it is a good indication of possible future judicial thinking.

An English Court of Protection case, SSV v Richmond upon Thames, concerned an adult who lacked capacity due to dementia and refused to take the COVID-19 vaccine. This was consistent with her previous refusal of vaccines when she did have capacity. It was ruled not be in her best interest to force the vaccine due to broader implications of harm to her welfare living in the care home that forced it.

As it is already mandatory for doctors and nurses registered in Scotland to be vaccinated against Hep B, meningitis and MMR, a similar policy for the COVID-19 vaccination could feasibly be put in place for that sector. It is difficult to envision other industries doing the same as they do not have that precedent. Those employed in the medical field have knowledge that they have to be vaccinated before entering into employment. For other industries there are concerns of possible knock-on effects of people not wanting to enter an industry with a mandatory COVID-19 vaccine.

Conclusion

It is clear that there is no simple answer to the legal questions posed. Although public health is important, especially in the times we find ourselves, this must be balanced with individuals’ rights and freedoms. If a very hard line is taken, the implications could damage the fundamental relationships at the heart of employment law.

Certain industries will be better placed to introduce and handle vaccinations in the workplace. However, any changes ought to be brought in after discussion and cooperation between employers and employees. Current risk assessments should first be considered, and only then, necessary changes brought in instead of blanket mandates. Given the pandemic and its effects seem set to stay for a while longer, legal development in this area is needed to provide clarity going forward.