Can an employer force you to have the Covid-19 vaccine or wear a mask at work?
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Can an employer force you to have the Covid-19 vaccine or wear a mask at work?
Having the jab
It has been widely reported in the media that Pimlico Plumbers said it plans to introduce a “no jab, no job” policy requiring all of its workers to have the Covid-19 vaccine. Charlie Mullins, founder and chief executive told business newspaper CITY A.M. that the company’s lawyers are working on a redraft of their contracts to include the vaccine requirement, however. A later blog by the company said that this would not apply to its existing workforce, but for new staff only.
This does beg the question of how legal it is for employers to insist their workers agree to having the vaccine, with the threat of dismissal if they refuse to do so.
This is a tricky situation for employers, whose instinct is to consider how best to keep all its employees and customers safe. Indeed, this is in line with their general duty of care to take reasonable steps to reduce any workplace risks.
Although there is nothing stopping employers encouraging their employees to be vaccinated, employers do not have the right to compel its existing employees or workers to have a coronavirus jab without their consent. Even the UK government doesn’t have this right, so it can’t be the case that employers could easily enforce or justify such a policy. If they tried to do so against the wishes of employees, which in turn, undermined their trust and confidence with that employer, then a claim can be made to the employment tribunal if an individual felt they had no option but to resign from their employment. This is known as constructive dismissal, and you would need 2 years minimum service to make such a claim.
If an employer simply went ahead and dismissed someone for refusing to take the vaccine, then a claim for unfair dismissal could be made, and again a minimum of 2 years’ service would be required.
There could also be a separate claim for discrimination if somebody was, for example, justified in refusing the vaccination on religious grounds (many vaccines have gelatine as part of their components, which is derived from pigs). Furthermore if someone refused the jab because they were pregnant or had health issues, this could also give rise to a discrimination claim, and there is no qualifying period of service necessary to bring such a claim.
Even if an employer does not compel employees to get the vaccine but states that employees cannot return to the office until they have had the jab, then employers will still face the same risks as set out above. It is much better for employees to consult with their workers about these issues, rather than seeking to enforce them against an individual’s will.
For new staff, it would be easier for employers to incorporate a condition into the contract terms that a vaccination has already been given, although the rules relating to discrimination would still apply- even at interview stage.
What about masks?
The difference here is that from the 24 September 2020, much of what was previously guidance on face coverings in public areas has now become law. Furthermore, there are specific rules on certain jobs where it is mandatory for face coverings to be worn in the employer’s business (for example, hospitality settings, close-contact services such as hairdressers, beauticians, tailors and fashion designers, or PPE for those working in clinical settings).
As mentioned above, employers have an obligation to provide a safe work environment for employees, and have general legal duties of care towards anyone who may be accessing or using their place of business (e.g. visitors or customers).
This means that if an employer reasonably believes that wearing face masks at work is appropriate and necessary from a health and safety point of view, it can issue an instruction to employees to this effect and employees should abide by this as far as possible. Indeed, I have seen many instances of disciplinary action being taken against staff for refusing or omitting to wear a mask, and which has led to the termination of their employment.
As always, employers should be aware that there is the risk of unlawfully discriminating against people who are exempt from wearing face coverings or have legitimate reasons for not doing so (for example if an employee suffers from asthma). There should also be consideration where appropriate to make reasonable adjustments for disabled workers, which might allow someone not to have to wear a mask, and have a more private workspace (or to work remotely).
Again, it is always recommended that employers first discuss any concerns raised by employees who do not want to or feel unable to wear a mask rather than adopting a more draconian approach.
