Each employer needs to consider the risk to staff and others from transmission of the virus, and what risk management controls will minimise that risk. One of those controls may be vaccination, but there is a huge difference in terms of the risks to/from someone not vaccinated who works on their own outside (for example, providing gardening services) and someone working inside in close proximity with vulnerable people (such as a carer in a Care Home).
Alternative controls will continue to be relevant as there will be a number of people who for good medical reasons cannot have the vaccine, or who remain unable to obtain one (e.g., including those not yet called for their jab and on an ongoing basis potentially, those who are under 18)*. It is also unclear at present whether we will have to move into a cycle of regular booster jabs to manage variants of the virus.*
If your risk assessment is done properly there are likely to be some environments/employees for whom employers can legitimately make vaccination a condition of obtaining or retaining a job (e.g. because customers require it – which is likely to be the position for care homes), but also many where the requirement cannot be justified on health and safety grounds because the adoption of other measures (e.g. outside work only, limited contact with non-vulnerable people, and other control measures such as masks) can adequately manage the risk of virus transmission to the individual refusing the vaccine, and to others.
We have already had an indication that employers will be supported with the imposition of reasonable control measures. A tribunal in East London ruled in February 2021 that a delivery driver’s dismissal was fair in circumstances in which he refused to comply with a customer’s requirement (which went beyond that required by law) that he wears his face mask inside his cab when making a delivery. That led to him being banned from the customer’s site which made his job untenable going forwards. The tribunal’s decision appears to have been based on the fact that the employer’s decision to dismiss was reasonable when the employee breached a reasonable health and safety instruction to wear a mask.
Similarly, if vaccination is a necessary health and safety control measure required for the health and safety of staff or others who may be impacted by your undertaking, then dismissal of an anti-vaxxer may be reasonable. If that is the position you adopt as an employer though, you need to be able to defend your position on health and safety grounds and that will be a question of fact and degree depending on what contact with others the job required, whether those others were vulnerable, whether it jeopardises contracts, and whether adjustments could be made which avoids the risk of infection to the individual and to others.
Given that legal costs are not normally awarded in a tribunal, rather than being right but out of pocket because of a claim following dismissal, the more pragmatic approach is probably to ensure that your risk assessments take an objective and realistic look at the risks and risk controls possible and necessary, engage with anti-vaxxers to identify if there is any legitimate reason behind the refusal to have the jab and to help them to understand why it is important to have the controls in place, and what the implications may be if their refusal puts them and/or others at risk. That may assist in resolving the issue for you without descending into litigation. Reminding them of their statutory duties under section 7 Health and Safety at Work etc. Act 1974 (for which there are criminal sanctions for breach which include prison and fines) might also help to persuade them to your viewpoint.
Health and Safety Specialist Solicitor
*Information correct at time of publishing.