Can you make vaccines contractual obligations?
Updated: Mar 22, 2021
Pimlico Plumbers has made the news by confirming its intention to make it a contractual obligation for new starters to have the Covid-19 vaccine, and to change its existing contracts to include the obligation for existing staff members. However, much has been made about the validity of this decision and whether the company is able to do so.
Of course employers can put a clause in the contracts for new starters requiring staff to have the vaccine, however that will have consequences. Whilst many will comply in order to get the job often without minding, some groups of people may not be able to meet this requirement, or want to do so for example those with an autoimmune conditions, pregnant women, those with allergies to any ingredient of the vaccine, and those who oppose vaccines on the grounds of belief for some reason such as antivaxxers or vegans. Where the reason relates to a protected characteristic under the Equality Act 2010 (like pregnancy, disability or region or some beliefs) this may give rise to claims for discrimination. The likely success of such claims will generally depend on whether the requirement can be objectively justified, so whether it is a proportionate way of achieving a legitimate aim, which will depend on the circumstances, the role, and the work undertaken. Understanding why as an employer you believe that having the vaccine is essential, and this being credible and reasonable will be important. However even where that is the case, employers will need to weigh up the risk of claims and associated costs to their business both financial and reputationally, with the advantages that having all new starters vaccinated will bring. In some cases the advantages may outweigh the risks, and in others it will not. In respect of requiring existing staff to have the vaccine, an employer's ability to do so will depend on their contractual terms, and whether it is a reasonable management instruction to require them to do so. Again, similar groups of people are likely to be impacted which again can give rise to discrimination claims, but also constructive dismissal claims.
If the requirement requires a change to an existing contract (which it usually will), contractual changes generally require agreement, and consultation, although in some situations are imposed, but not without risk. Employers should therefore plan changes carefully and take legal advice as to the best and safest way to achieve such changes if they need to.
Pimlico Plumbers has sensibly said that where someone cannot have the vaccine itwill consider this on a case by case basis. Having a blanket policy to dismiss all those who won't have it is certain to lead to successful unfair dismissal claims, which could see an employee being awarded as much as £104,659. Where dealt with on a case by case basis, in some cases we think a fair dismissal for not having the vaccine is possible, but the process and fairness of such a decision means employers should have very strong and objectively valid reasons for requiring the vaccine, consider the situation carefully, take legal advice and explore other possible arrangements before considering dismissal, and then follow a proper procedure.
Rather than making this a contractual issue, many employers are amending policies to strongly encourage employees to have the vaccine, and will still need to consider what steps to take for those that don't, which could in exceptional cases include dismissal.
This area is a complex one and employers should seek legal advice as this becomes increasingly on everyone's agenda given the apparent importance of the vaccine in enabling businesses to succeed in a world with Covid-19, and their obligations to safeguard their staff, clients and customers.