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If your employer demands that you get vaccinated and you don’t want to, what do you do?
This question has come to me a few times and now that care workers are being mandated by the Government to get the jab it’s even more important to know what your rights are.
If you’re happy to be vaccinated, or you’ve done it already, then this is not an issue for you and you can just get on with your work. But workers who don’t want the jab often feel lonely and afraid. The good news is, though, that there is help and you do have rights.
So what are your rights? Read on to find out
The ‘no jab, no job’ statement is supposed to be law from November 11th 2021. It has gone through both the Commons and the House of Lords. However, this new law goes against a plethora of existing laws and rulings both national and international, so it is likely to be tested several times and may be found wanting. We will have to see.
Notwithstanding this new legislation for anyone who works (in any capacity) in a care home, you do have legal rights if your employer insists you have a vaccination against your will, wherever you work, and it’s important to know what they are and how they can be implemented. You will remember that the vaccine manufacturers have no liability for injuries or worse, so who would be liable if you were injured and could no longer work?
It’s also important for employers to know what their rights are in this situation so that both parties are protected. Employers could incur enormous costs in compensation and legal action in the future if they don’t proceed properly with enforcing the vaccination on their employees.
Here are some facts and ideas that you can use in your discussions with your employer about this issue.
For a start, there is insufficient evidence that the injection actually keeps the vaccinated person safe from infection or that it keeps those around them safe for employers, or Government, to demand it.
Mini Setty, partner at employment law firm Langleys says “There is not enough evidence to suggest taking the vaccine makes everyone’s working environment safe. If an employer tries to force their employees to receive the jab or decides not to hire someone based on their refusal to get the jab, it could be result in employment claims, for unfair dismissal and/or discrimination.”
She adds, “vaccinations create a conflict of legal protections, where the freedom of individual choice is weighed against the health and safety of others. Some employees may have a justifiable reason for not wanting to take the vaccine, and we would always urge employers to discuss an employee’s reluctance, whether it be related to a disability or religious reasons.”
What has been found is that the injections break the link between infection and hopspitalisation or death. That is fine for the vaccinated person but there is insufficient evidence to show that it stops others being infected too.
Another issue for employers to grapple with is that so far there haven’t been any major legal cases on this issue where a precedent can be set.
Hannah Dowd, employment lawyer with law firm MSB says, “Mandating a vaccination has never been tested in UK law. For a start, there are risks associated with people who refuse to be vaccinated and have two years service. There’s a potential for discrimination claims. While the rule for care home workers may be enshrined in legislation enabling employers in that sector to rely on legislation, other employers who are proposing it will not be in the same position. I would be very very cautious if I were running a business that is not a care home business. There are lots of things for them to consider.”
Also, there are a number of laws and former judgements that can be used to bolster an employee’s case whether they work in a care home or anywhere else.
For example, Jonathan Lea of The Jonathan Lea Network (business solicitors) says
“Under various case law decisions men and women are to be held personally liable for their actions that result in harm, loss, suffering and/or death that they cause from their actions or omissions. See, for example, our UK Supreme Court decision in Montgomery v Lanarkshire NHS Trust 2015.
“In relation to domestic statute law ie the “Acts” of Parliament, we have numerous UK statute laws being broken including – but not limited to – the Human Rights Act, the Equality Act, the Health & Safety at Work Act, the Health & Safety at Work Management Regulations 1999, the Offences against the Person Act, the Coronation Oath Act, the Parliamentary Oaths Act, and more.
“In relation to European and International statue laws being broken, these include – but are not limited to – the Universal Declaration of Human Rights, the European Declaration of Human Rights, the International Convention on the Rights of the Child, the International Convention on the Rights of the Disabled, the Declaration of Helsinki, the Oviedo Convention, the UNESCO declaration of Human Rights and Bioethics, the Fourth Geneva Convention, the Lieber Code, the Nuremberg Code and others.
“In relation to International case law, there are too many cases to list. But the main Judgments to be referred to and cited are the International Military Tribunal Judgment at Nuremberg dated 1st October 1946.”
in fact, Jonathan Lea has a free resource for employees who do not want to get the injection here. You can download it and use it to help argue your case.
personal risk assessment: vax safety vs risk of dying from c19
The argument used by both employers and non-employers who are pro-injections is that the covid injection will protect the injected from catching Covid-19 and will stop others from catching it.
However, the Government’s own figures do not support this assertion. On 25th June Public Health England published data that showed that people over the age of fifty who were unvaccinated accounted for 10% of Covid cases, whilst those who were fully vaccinated accounted for 37% of the cases. A further 40% of cases were people who had received one vaccine shot at least 21 days prior to their Covid-19 infection.
If this trend continues then people who become infected with Covid-19 after being vaccinated, if they were coerced into the vaccination by their employer, could potentially sue their employers for putting them more at risk of infection, although the injection might reduce their symptoms. There hasn’t been a test case so far in this area so it’s unclear which way the judgement would go, but it is a risk for employers.
Also, many people are understandably worried about getting an adverse reaction from the vaccine. According to the Government’s own figures, many have already had bad reactions and it is unknown what future reactions could be.
Any employer who wants to make their employees get vaccinated in order to keep their job, needs to get good legal advice about how to do it before they act.
It’s an area fraught with uncertainty and difficulties and employers should approach with extreme caution.
Sarah Calderwood, employment lawyer at Slater Heelis Solicitor, says “”A blanket ‘no jab, no job’ policy is likely to open up an employer to discrimination claims if the reason for a worker’s refusal to take the vaccine is because of a protected characteristic such as religion, belief, pregnancy or other health condition that could be classed as a disability.
“The question the courts may have to grapple with is whether a vaccine sceptic could be considered to hold a belief under the Equality Act 2010. Requiring a vaccination is far more invasive than just requiring an employee to use PPE, such as wearing a mask.”
Calderwood adds, “there are also arguments that such policies could be discriminatory against young people given that they are the last in the queue in the government’s vaccination protocol. It may be possible for employers in certain sectors such as health care to justify the rolling out of such policies given the prevalence of vulnerable patients in their care.”
Harinder Sangha, Senior Solicitor in Eric Robinson Solicitors Employment Law Team adds “employees cannot be forced to have the vaccine. But can they be disadvantaged by their choice not to have it? Can an employer impose a blanket vaccination policy? This raises further issues and could become discriminatory.
“The Office of National Statistics report: Coronavirus and vaccine hesitancy, Great Britain: 28 April to 23 May 2021 (9 June 2021), shows clear disparity in vaccine hesitancy. This means that issues of race, religion or sex discrimination could come up if your company decides for a blanket policy to be incorporated.
However, Alana Penkethman of Parker Bullen, says an employer may be able to dismiss a worker who refuses to be jabbed if they can show that because of this refusal they cannot fulfil their employment contract. She says, “one reason for fairly terminating a worker’s contract, at least for those working in a care home, is that if the Government says you have to have this vaccination and they’re not able to do it then the contract is ‘frustrated’. There is the risk that people will bring claims for constructive dismissal, she says, but then the employer can argue that their acts were justified by the employer pursuing a legitimate aim or frustration of the contract.”
She adds, though, that on the employee’s side the European Convention of Human Rights, Articles 8 and 9, would argue for the worker’s rights not to have the injection if they are against it. Article 8 enshrines the right to private life, family life and Article 9 the right to freedom of thought, conscience and religion.
“It’s tricky,” she says, “because we do have case law for previous vaccinations that says being an anti-vaxxer isn’t a philosophical belief…it has to be a religious belief.”
Carl Atkinson, partner at Gunner Cooke says: “if an employee receives a vaccine injury there might be an argument that the employee could make along the lines that the employer has obligations to ensure the safety and welfare of employees in the context of their work. That’s well established if one goes back to the old Factories Act. If an employer impelled employees to take a vaccine in circumstances where there are risks with the vaccine, then there might be an argument that the employer has failed to discharge their duty of care to the employee.
“The complexity is that the employer could say we didn’t know there was a problem with the vaccine. It’s possible that they would not know and that would take the parties to an analysis of whether the employers were reckless in forcing employees to be vaccinated.”
He adds “I’m not an advocate of businesses requiring employees to be vaccinated and I’ve consistently advised employers not to do it. I am also uncomfortable about a wider situation where the Government is encouraging to the point of compulsion to be vaccinated with these suggestions that you will only go to a football match if you show a covid passport.”
As mentioned above, one of the biggest problems for employers wondering whether to insist that their employees are vaccinated is the lack of legal clarity around this issue. This is something that you as an employee should make clear.
Caroline Roberts, HR Director at the CBI (Confederation of British Industry) says the lack of clarity and legal precedent makes the situation very difficult for employers. “I wish I could say it was easy.” she says,”but it’s not. Because there isn’t the case law we don’t know which way the judges will go and no one wants to be the test case around this. Everyone is sitting on the fence.
“As of Monday 19th July all the responsibility for keeping people safe has been put on employers. Many employers and hr departments are looking for clear guidance from the Government. Businesses are told to make themselves COVID safe, but what does that mean if your business is a nightclub?
“The vaccine is only one element of it too. There’s hand-washing, social distancing, masks etc. Then you have the other problem when you’re dealing with employees that have seen crowds of 80,000 people at the football match at Wembley and celebrities sitting close to each other at Wimbledon. They start to question why they’re being given different instructions.”
The CBI has a section on their website dedicated to helping employers deal with the various issues surrounding covid here.
Sarah Calderwood agrees that it is a worryingly grey area legally because of a lack of precedents. She says to employers: “there haven’t been any legal cases to test these points yet so it’s a good idea to carry out an analysis of each job role and fully assess all the health and safety risks that relate to that role. Make sure it’s all put down in writing too so that management, employees and, if necessary, regulators and lawyers later on, can see your reasoning for each step.”
You can also point out the data protection issue. If administered wrongly this could be very expensive for employers if it came to court.
Calderwood explains: “requiring proof of vaccination means that an employer would be processing special category personal data. The requirements of the UK GDPR must therefore be considered. Such a requirement is also likely to cause delays in the recruitment process and discourage otherwise suitable applicants from applying, leading to the employer losing out on top talent.”
Lawyers agree that there could be justifiable circumstances for insisting on the injection, so be aware of those..
Calderwood says “one possibly justifiable circumstance would be situations where employees are required to work in small spaces such that it is not possible for that area to be made covid-secure via other means. However legal advice would need to be sought before relying on such justifications.”
Alana Penkethman adds, “one reason for fairly terminating a worker’s contract is that if you have to have this vaccination from the Government and they’re not able to do it then the contract is frustrated.
“But make it as easy as possible for the worker to get the vaccine, Allow for time off and time to recover and do what you can to encourage them. Whilst it’s compulsory for care homes to insist on it, it’s not possible to enforce your workers to have it..”
Another way round the injection issue, at least for some employees, is to find different ways that they could continue to work. In some sectors employees can work from home or work in a separate area from other employees. This isn’t possible in all types of jobs, of course, but make sure you show yourself willing to consider potential alternatives..
Mini Setty says, “in all cases, every other option would need to be exhausted before dismissal was to be considered. For example, they could ask an employee if they can work from home, or to consider switching to a role that would mean they are coming into contact with fewer people in order to effectively safeguard against the potential risk.”
Carl Atkinson, partner at Gummer Cooke adds that regular testing could obviate the need for injections in most areas of employment. “I have been advising businesses to avoid the “no jab no job” approach for a few weeks,” he says, “and I have not seen anything recently which makes me take a different view. The situation could be slightly different if employers were to adopt a “no test no job” policy. I understand that lateral flow tests are becoming more available to employers and these provide rapid results to confirm positive or negative status. Employers could purchase a quantity of these tests and offer them to all employees. Employers have a legal obligation to provide employees with a safe place of work and mass testing may well be a reasonable step to complying with that obligation.”
Indeed, if it is true – as has been stated by politicians, scientists and journalists – that the vaccine doesn’t actually stop the vaccinated passing on the infection to others, then testing of vaccinated and unvaccinated would seem to be the only option to ensure safety in the workplace.
“If no solution can be found,” says Atkinson, “there could be serious ramifications for the employers if they dismissed or refused jobs. It is likely that we will see a significant increase in cases brought before the employment tribunal to decide the rights of employers versus employees.”
On July 13th the Commons passed a Bill to make it mandatory for those who work in, or volunteer at, a care home to be double-vaccinated. This Bill was then passed by the Lords and is to go into effect on November 11th.
Stephen Morris of The Workers of England Union says that people who work in care homes are a soft target for the Government. “They know that care home workers are kind people” he says. “They’re clearly being used as a starter then the net is widened to caterers, gardeners, hairdressers. Once they have the care home workers the demand will spread to other professions.”
Some of the rules of the new legislation are:
Harinder Sangha, says “it remains to be seen whether the Government will extend this to any other professions such as nursing, schools etc. but given the ever-evolving nature of Covid-19, it’s likely that more professions will be included in this in the future.
Some unions are standing up for their members who do not want to take the jab in order to keep their job, but others seem to be taking the Government’s line. If your union is not helping you then try The Workers of England Union which is working on behalf of its members on this issue. This union is not affiliated to a political party and works independently on behalf of its members.
Stephen Morris from the union says “we have just got Barchester NHS Trust to backtrack on a dismissal. First of all we’ve asked them to do a risk assessment. Once you’ve got that it can be challenged. the vaccine doesn’t do what they want it to do. We ask them if the vaccine protects the residents? Well it doesn’t. it’s like putting cream on yourself to protect someone else from sunburn.
“They’ve completely ignored the risk to the employee. We’ve asked about the yellow card figures. We’ve shown that it’s experimental and they say it’s not. On the Government website it says that these are clinical trials and shows the side effects. They have completely ignored the Health and Safety at Work Act 1974 which considers the employee. Also the Health and Safety at Work Act 1974 shows they have to do a risk assessment for any new policy like this. It’s the company’s duty of care to their employees.
“If you’re harassing an employee to have the vaccine then you’re going against the laws. It’s emotional blackmail. They say that to keep your job you must take part in clinical trials and that has never been known.”
The Covid19 Assembly has created a template letter that care home workers can use if they do not want to be injected. You can download it for free here.
The UK Freedom Project has also created a template letter and has given advice on their website here.
You may find this letter from the Legal Advice Network sent to Government ministers to be helpful in your dealings with your employer or HR department.
Ultimately, employees who have researched the effects of the covid vaccination and are still worried about its safety, can simply say no to employers who insist that they get the jab in order to keep their job.
As shown above,
Although there has been a lot of talk from employers and Government about mandating vaccines, in practice it is actually difficult to enforce so employees have more power than they realise to resist these attempts.
Carl Atkinson at Gunner Cooke says “I think there will be a lot of talk about enforcing vaccinations but there won’t be the delivery. This may play out with the Government talking it up and then hoping that commercial organisations will deliver it.
“I can’t foresee how an employer could force an employee to be vaccinated without very significant legal risk. If they got to a situation where an employer is saying to an employee you must be vaccinated and the employee said it wasn’t in their contract (and that’s the case for most people currently employed) if would be a breach of their contract wouldn’t it?”
If you are unhappy about having the injection, and you are not getting support from your own union or HR department, try the following organisations:
This article is not meant to be taken as legal advice and is editorial in nature. If you need legal advice about any employment issues speak to your HR department, your union or a qualified lawyer.