The Re-emergence of Employment Rights - Where do Vaccines fit in?

Background

Gone, it seems, are the days when companies existed to make money for their shareholders. A survey conducted by the Institute of Directors in June showed that companies are coming under greater pressure to recognise the impact of their decisions on the environment and the communities in which they operate.[1]

ESG (Environmental, Social and Governance) is a stakeholder-centric approach[2] to doing business which focuses on the need for ethical conduct when doing business. Whereas the environmental and governance aspects of ESG are relatively well known (for example, combatting climate change, transparency in executive pay), less well known are its social aspects. It is here where employment rights are assuming greater importance.

Employment Implications of Vaccination in the UK

As discussed above, social aspects of ESG are where employment rights are coming into the fore. A current topic to explore in this regard is the controversial question of whether vaccination can be made mandatory for workers of UK businesses.

To date, the government has only legislated for the COVID-19 to be mandatory for workers in registered care homes in England.[3] This will come into force on the 11th of November 2021. The situation in the USA is a very different one where the list of businesses requiring vaccinations is extensive.[4] However, this is not surprising given the fact that employment rights are far less protected in the USA with ‘at will employment’ existing.[5]

One exception to the precedent set in the UK, is the plumbing business, Pimlico Plumbers, who announced a “no jab, no job” policy for new recruits.[6] This was done to gain a competitive advantage and guarantee a COVID-19 safe service with staff also taking a test every morning before going to customers. While this may be re-assuring to customers, the law surrounding vaccinations is tricky to navigate and businesses keen to build an ESG strategy must tread carefully.

The Law Surrounding Vaccinations

In the absence of vaccination becoming a legal requirement, an employer cannot force an employee to be vaccinated without their consent. This is highly significant for businesses, as employees could raise discrimination claims if they feel that they are being mistreated with respect to a protected characteristic. For example, some Christians are against the vaccine as it contains stem cells. Pregnancy is a more complex category as although guidance has been given encouraging pregnant women to have the vaccine, more research is needed.[7] Special emphasis needs to be placed on discrimination claims as they are notably uncapped and carry significant reputational risk, capable of destroying a company’s ESG strategy and sending it into mass disrepute.

Peter Cheese, chief executive of the CIPD organisation for HR professionals, has stated that “The UK government hasn’t made the vaccine compulsory, so neither can employers. Nor should they be restricting people coming into work based on whether they have had the vaccine”.[8] While these words may seem blunt, this is the simplest way for businesses to avoid legal issues. Discrimination has been discussed above, but this is not the only potential claim which can be brought against a company if it was to introduce mandatory vaccinations; unfair dismissal could also be claimed if an employee had been with the company for two years. 

Conclusion

As can be seen from the risks above, mandatory vaccination requirements would be a dangerous strategy for a business, and it is apparent why almost all businesses have chosen to stay clear of them. However, due to the unpredictable nature of the pandemic, we cannot rule out entirely the possibility of the requirements being used by some businesses in the future.

[1] IoD: 6 in 10 firms believe they should not exist solely to make money | Institute of Directors | IoD

[2] The Stakeholder Model and ESG (harvard.edu)

[3] Vaccination of people working or deployed in care homes: operational guidance - GOV.UK (www.gov.uk)

[4] Google, Morgan Stanley, and Walmart are but a few examples.

[5] At-Will Employment - Overview (ncsl.org)

[6] Pimlico Plumbers to Implement “No Jab, No Job” Work Contract (lawyer-monthly.com)

[7] NHS England » NHS encourages pregnant women to get COVID-19 vaccine

[8] Employers can’t force staff to have the vaccine, but they should encourage them to, says the CIPD | CIPD