In this blog series, Astra Emir, practising barrister and author of Selwyn’s Law of Employment, explains what UK employment law says about some of the important issues faced by employers and employees.
The issue of so-called “compulsory vaccination” is an emotive one for many, and now with the rise of action being taken against unvaccinated employees it has become an employment law issue too. This is having an impact in two main areas: in the field of statutory sick pay and also whether employees in health and social care must be vaccinated.
Action against unvaccinated employees
In recent weeks, a number of large British employers have followed their United States counterparts in withdrawing enhanced statutory sick pay from unvaccinated employees who have to self-isolate, leaving them to claim only the statutory amount of £96.35. These have included Pimlico Plumbers, Morrisons, IKEA, Next, and Wessex Water, and the number is increasing.
In addition, since November 2021, anyone who enters a registered care home (including employees) has had to be vaccinated unless they are exempt. This will be extended to those working in a patient-facing role in a health or social care workplace from April 2022, leading to fears that up to 80,000 NHS employees could be dismissed if they cannot be redeployed.
There have been claims that such requirements effectively impose a rule that employees must be vaccinated. Is it compulsory vaccination by any other name?
To force someone to be vaccinated against their will would almost certainly be an abuse of human rights (at the time of writing Austria has moved one step closer to being the first European country to introduce a mandatory vaccine order as their parliament’s lower house voted in favour of proposals.)
Insisting that a person is vaccinated, however, is not what these rules say. What the government and employers have done is to put conditions on those who are unvaccinated, whether it be the terms on which they are employed, or, in some countries (but not the United Kingdom (UK)), on what they can do (the latter are sometimes called “vaccine passports”). This is intended to encourage take-up of vaccines, but also has the effect of limiting the liberty and choices of those who are not vaccinated. The question considered here is whether such conditions are legal.
European Court of Human Rights cases
The issue of “compulsory vaccination” has not yet been tested in the British courts, but in the past year there have been cases in the European Court of Human Rights (ECHR)—of which the UK is still a member as it is unrelated to the European Union (EU)—which may give a flavour of what could happen here.
In the first, a non-COVID-19 case but similar scenario, Czech parents of children unvaccinated against childhood diseases were fined and their children refused admission to pre-school. The parents’ claims were made under Article 8 “the right to respect for private and family life” and Article 9 “freedom of thought, conscience, and religion.”
In some cases, rights under the European Convention—and thus the Human Rights Act, which brings these into British Law—can be justified in situations where the law is “lawful, necessary and proportionate.” Here, the court found against the parents even though their Article 8 right was breached because the purpose of the law was to guard against major disruptions to society caused by serious disease, namely the interests of public safety, the economic well-being of the country, or the prevention of disorder. This was necessary in a democratic society. It was also emphasised that there is an obligation on states to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development. When it comes to immunisation, the objective should be that every child is protected against serious diseases.
Legal arguments for UK cases
There are also some laws specific to the UK that could be considered in any case brought here, and there are three main limbs of argument.
Note that for the legislation imposed on care providers, the avenue for that would be a court challenge to the legislation itself against the government, not against an employer, and this relates to the first two limbs of argument below. In other circumstances, however, if an employee is subjected to a detriment by their employer, they may have one or more of the following three arguments.
Human Rights Act
The first is under the Human Rights Act 1998, which can be used to bring a claim under the European Convention on Human Rights in the national courts.
As well as the Article 8 argument in the ECHR case above, the parents contended that vaccination was contrary to their Article 9 right. This claim was dismissed because the parents’ particular beliefs did not have sufficient “cogency, seriousness, cohesion, and importance” to be covered. Even if they did have, it is almost certain that the justification found for Article 8 in that case would also have applied to Article 9, and so the claim would have failed on that basis too, although here a court may find that someone does have a belief that is strong enough to be covered—it depends on the facts of each case.
There could be similar claims in the UK, although in the care providers’ case a justification by the government that it is necessary for the health of the population may be weakened compared to the childhood vaccinations given the huge numbers of people that may be affected and the consequent risk to the NHS.
The second argument comes under the Equality Act. There are a number of possible claims here. A pregnant employee who refused to get a vaccine could claim pregnancy discrimination, or there may be claims of race discrimination or discrimination against “religion and belief.”
Any conditions imposed on unvaccinated employees that put them at a disadvantage to vaccinated employees could disproportionately impact, for example, certain racial groups which have a lower take-up of vaccination. It may also impact more on people of certain religions, or those for whom anti-vaccination could be so cogent as to amount to a religious belief. This disproportionate impact is known as “indirect discrimination” but, like Articles 8 and 9, it may be justified, and it is possible, as in the ECHR case, that a court will find in such a case that the national interest in protecting the population or the interest of the other employees, patients, or other relevant persons would be sufficient to defeat the claim.
The third area of claim in relation to the statutory sick pay issue (not the care providers’ legislation) would is related to employment law.
Any change to an employment contract would either have to be by agreement or the contract would have to allow an unilateral change by the employer, so there is a risk of breach of contract—although this is unlikely to be the case here as in most cases statutory sick pay for coronavirus illness is unlikely to be incorporated into the contract.
Any such change or requirement to be vaccinated can also be argued to be a breach of the employer’s duty of trust and confidence. If an employee feels that they have to leave their job because this duty has been breached by the employer, then this could amount to constructive dismissal.
There is also an issue about asking employees or potential employees about their health data, but again this may be justifiable.
The main issue to note is that any requirements or changes introduced by private employers must be thought about carefully and done after consultation, having checked employees’ contracts, to avoid legal action. In summary, there are a number of legal avenues under European and UK law that can be taken by those affected by the new “no jab, no job” rules imposed by employers and by the government, although, as discussed, success is not guaranteed as there are arguable cases for both sides.
Please note that this an overview of the law and is not intended to be legal advice, and each case depends on its own specific facts.