Requiring employees to have a Covid-19 vaccination

A London plumbing company has said that they will not employ anyone who has not had the Covid-19 vaccination and that they will take steps to change the terms of the contracts of employment of existing employees to require them to have the vaccine when it is available privately.

This position is likely to raise debates on many levels however, there are significant employment law implications involved in the proposals made by Charlie Mullen of Pimilco Plumbers which will be important to both employers and employees. There are two main issues to consider:

• Can an employer force an employee to have a vaccine?
• Can an employer refuse employment on the basis of an applicant not having had a vaccine?

Can an employer force an employee to have a vaccine?

In short, no. An employer has no legal right to force an employee to have a vaccine.

Under UK public law individuals have specific rights which are reinforced by the Human Rights Act 1998 and employment legislation; for example the right to hold religious beliefs and the right to freedom of expression.

There may be a range of reasons why a person will not and/or cannot receive a vaccine. These reasons may include religious or ethical beliefs for example veganism if the vaccine contains animal products or if they are unable to have the vaccine because of medical grounds and/or a disability. These reasons may give rise to claims for discrimination if the employee is treated less favourably for refusing their employer’s request. In addition, an employer may expose themselves to the risk of a claim for unfair dismissal (including automatically unfair dismissal) if they seek to end an employment relationship due to the employee’s refusal to be vaccinated.

In the particular instance of Pimlico Plumbers, Mr Mullen has accepted that he cannot force current employees to have a vaccine when they are privately available but explained that he will incorporate the option into their existing contract of employment. Speaking to BBC Radio on 15 January 2021, Mr Mullen said that the offer of a private vaccine paid for by the company was a recommendation to employees only and that the decision would be the choice of the individual. He has explained that the proposal is about safety and that he wants to offer customers the option of a vaccinated tradesperson. As well intentioned as this may sound, there could be implications if employees or indeed workers or self-employed contractors lose work for this reason because they are not vaccinated.

Can an employer refuse employment on the basis of not having had a vaccine?

A prospective employee has a right not to be discriminated against at the application and interview stage of a job application. If an employer refuses to employ someone because they are not vaccinated then there could be a risk that discriminatory treatment may have occurred.

As explained above, there may be reasons why someone cannot have the vaccine. These reasons may relate to a health condition which amounts to a disability or a religious or ethical belief. Refusing to appoint someone due to these reasons or related to another protected characteristic may give rise to claims for discrimination. Further, given that, generally, only the oldest section of the population are currently being vaccinated at present then this may lead to claims for age discrimination or a freeze on recruitment.

Employers should be mindful of the current Covid-19 rules and Government guidance about operating a safe working environment. If an employer is looking to amend the terms of existing contracts of employment or wishes to implement any practices or policies which could be interpreted as discriminatory they are recommended to obtain legal advice before any steps are taken.

For advice on this, or any other employment law related matter, please contact Laura Tennet, a solicitor in the employment team by emailing ltennet@mincoffs.co.uk or calling 0191 281 6151.