Posted on: Jan 12,2021
Can I be forced to get the vaccine?
There are three things that need to be considered, the choices that might be presented to you, get vaccinated or get dismissed, the cold, hard reality facing you if your employer instructs you to be vaccinated and what sort of claims you’ll have if you’re dismissed following opting not to get vaccinated and being dismissed as a result.
Now, this sounds obvious, but it does need saying your employer can’t compel you to get vaccinated in the sense that it can’t pin you down to the floor and stab a needle into your arm and press the plunger. Of course, your employer cannot force you to get vaccinated. In that sense, the sort of choice you’re likely to face is your employer coming to you and saying if you don’t get vaccinated, we’re going to dismiss you and give you lots of opportunities and they’ll talk to you a lot about it first. But ultimately, it comes down to a hard final binary choice for you.
Can I be dismissed?
Do you agree to get vaccinated? Or do you get dismissed, so can your employer say if you don’t get vaccinated, we’re going to dismiss you before I give you the answer? While it might be unlawful for your employer to dismiss you in certain circumstances that does not mean they can’t dismiss you. The dismissal will be effective. You’ll have no money coming in unless you get another job. You can then go and bring an employment tribunal claim and 12 months later, you might get compensation. That being said, there’s absolutely nothing that an employee can ever, ever do save in the rarest circumstances, which almost certainly isn’t going to arise here to stop you from actually being dismissed as long as you are paid notice.
Will I have a claim?
So will you have any claims if you’re dismissed for refusing a vaccine? Well, there are another three things to consider. Number one, vaccine hesitancy is not a protected characteristic like sex, race, age, disability. They’re all protected characteristics and under the Equality Act, an employer can’t treat you less favorably or dismiss you because of those protected characteristics. But vaccine hesitancy, the reluctance to be vaccinated is not a protected characteristic.
What if I have medical reasons not to be vaccinated?
A disabled person might be able to mount an argument that vaccinating them is dangerous because of their disability, and so dismissing them because of their refusal to be vaccinated is dismissing them for a reason associated with their disability. However, that would require a quite unusual and quite specific set of facts to bring that claim.
What if I have religious objections?
A Muslim employee might be able to argue that dismissal for refusing the injection discriminates against them because the vaccine contains pork gelatine and so offends the laws of halal and discriminates indirectly on grounds of disability.
With both the disability discrimination claim and the religious discrimination claim, the employer is still going to be able to justify that discrimination if it can show it has a good reason for requiring the whole workforce to get vaccinated. There are lots of complex factors here that come into play, which if you were running this argument, would make proving discrimination very difficult.
What about unfair dismissal? Well, the second point is that unfair dismissal rights only apply if you have more than two years of continual service. So if you’ve worked for less than two years you won’t have an unfair dismissal claim. There are a few exceptions to the two-year rule, for example, in whistleblowing dismissals. However, this isn’t going to fit into any of those exceptions. If you have worked for more than two years, then you’d have an unfair dismissal claim open to you and you’d be arguing that the employer’s decision to dismiss you for refusing to take the vaccine is unreasonable in all the circumstances. Now, it’s going to take a year before this is tested in the tribunals because it takes about a year for cases to get to the tribunal.
As things stand, the vaccine isn’t yet on general release but by the time the vaccine gets into the general population, as we make our way through 2021 and people are dismissed for refusing to take it and we’re getting into the end of 2021 and 2022, at that point, we’ll start to get some court decisions coming through.
But for now, the unfair dismissal claim is actually quite a strong argument. It is compelling to argue that the employer has acted unreasonably in dismissing you for refusing the vaccine because of a combination of four factors. First of all, your employer just can’t compel vaccination in the sense they can’t legally insist and get an injunction to require somebody to be vaccinated.
So if you can’t compel somebody to do something that is intrusive to their bodily integrity. It would be bizarre if that could be enforced by the back route, by the back door, by being allowed to dismiss somebody as a result of refusing to consent. That’s not the best argument, but it’s the starting point for the next three arguments, which are better. Second of all, it’s almost certainly an interference with the Human Rights Act and the European Convention of Human Rights. Article eight says everybody has a right to respect for their private life.
Now, injecting somebody with a vaccine on the face of it breaches that respect for private life. It breaches your bodily integrity and tribunals are not going to be impressed by employers who say, well, we have to make somebody breach their bodily integrity.
Number three, a small but significant proportion of the population does have real concerns about the side effects of the vaccination and about the fact they believe it hasn’t been tested as thoroughly as it should have been. We cannot rule out some people will have side effects the medical evidence is quite clear. The benefits to the population of having the vaccination outweigh the risk of harm to the population as a whole. But of course, an individual could have severe side effects. Theoretically, we don’t know yet, but theoretically, it’s going to be very hard for a tribunal to say that the employer is acting reasonably in dismissing for a refusal to have that vaccination and risk potential bodily harm, even if the risk is believed to be very, very low.
So an unfair dismissal claim would have a decent chance of winning if you’re dismissed because of a refusal to take the vaccination. Now, of course, you’ll be out of a job by then. You’ll have been unemployed for a year or so, which is the amount of time it takes to get a tribunal case to court. And the maximum a tribunal can award is one year’s pay for this sort of unfair dismissal claim.
You’ll get up to a year’s salary and it will take the best part of a year to get there and unless you get a new job pretty quickly, you’re going to have suffered a very, very difficult economic time unemployed because you refused to take the vaccine. So the litigation route is not an ideal answer to the problem.
There is an exception to this however organizations like the NHS, and Care Homes, are going to be in a much stronger position to justify the dismissal of somebody who’s refused to have the vaccination, because, in those organizations, it’s critical to make sure that the workforce is immunized and to make sure that the workforce isn’t passing the infection on to residents of care homes and to patients within the NHS, etc. But short of that, most employees from most organizations who are dismissed for refusing to have the covid vaccination would have a decent unfair dismissal claim.
Source: Daniel Barnett, Mondaq
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