As the UK roles out the COVID vaccine, primarily the Oxford-developed vaccine AstraZeneca, there are already rumblings about individuals refusing to take it.
Public Health authorities have advised pregnant women or those who are planning to become pregnant within three months of the first dose should not take the vaccine. There are also warnings for those with certain allergies to avoid taking the vaccine. But what of the infamous anti-vaxxers or those conspiracy theorists who believe taking the vaccine is a Government ploy to insert tracking devices into our systems?
In the case of an employee refusing to have the vaccine (out-with the medically approved refusals), can the employer do anything about it?
ACAS have taken the view that, no, employers are not able to require their employees to take the vaccine and should listen to employee concerns to understand where their refusal is founded. However, if the reasons for refusing the vaccine are unreasonable then employers can take disciplinary action - that seems a fine line to tread, so what could be considered 'unreasonable'?
Employers should consider whether the vaccine is a necessary requirement to do the job (and if so should consider putting a vaccine policy in place so that the requirements are set out in print); and whether the employee's reason for not wanting the vaccine might be considered protected under the Equality Act 2010.
In the UK, the current statistics show that 77% of the British public are willing to take the vaccine. In that remaining 23%, when we remove those who are exempt on medical grounds, we're still left with a percentage that are refusing for their own reasons, most of which are driven by personal belief. When does a personal belief transition into a protected characteristic?
Well, if we look at more recent Employment Tribunal decisions; we saw that in Casamitjana v League Against Cruel Sports an ET held that ethical veganism was a protected philosophical belief. We could therefore infer that any vaccine that contains animal products or has been tested on animals could be reasonably be refused by someone who considers themselves an ethical vegan. And moreover, their belief would likely be protected under the Equality Act 2010.
Some individuals may refuse based on religious grounds, again Religion is a protected characteristic under the Equality Act 2010.
However, despite the criteria that (1) the belief in question must be genuinely held; (2) it must be a weighty and substantial aspect of human life and behaviour; and, (3) it must be worthy of respect in a democratic society - the belief must also attain a level of cogency, seriousness, cohesion and importance. This does help us balance out the requirement for 'reasonableness'. If for example, an employee stated they were not getting the vaccine as it was a Government conspiracy, we could safely assume that this would not meet the criteria. Referencing Farrell v South Yorkshire Police Authority, where an ET held that the employee's beliefs that 9/11 and 7/7 were authorised attacks by the US and UK Government - although they were genuinely held - did not meet “even a bare minimum standard of coherence and cohesion”. The tribunal ultimately labelled the beliefs “absurd”.
Again, for an employer, judging objectively what is reasonable and what is not may be difficult - a recent example I heard was that an individual refused the vaccine as it (1) was not an actual vaccine, it did not provide immunity to COVID-19 or prevent transmission, it only lessened symptoms/improved recovery - AstraZeneca, at best, was a booster; (2) it had been pushed out so fast that it could not have had the rigorous human trials testing that any other medication goes through - although the messages released are stating that it's safe, this could be Thalidomide (1960's morning sickness drug) all over again, what are the longer term effects?, and (3) the reported side-effects of the vaccines are an ominous indicator - such as muscle spasms, chills, shakes, headaches, fatigue, stomach aches and a general feeling of being unwell.
In reality, (1) and (3) are correct, they are statements of fact about the vaccine. Although (3) is unpleasant, not every individual is experiencing side-effects, and the fact is, even when getting the flu jab there are nasty side effects for some individuals comparatively. (1) is also correct, but that's likely why the labs were able to push it out so fast, they didn't need a cure, they needed a solution to prevent further deaths. So (2) is the most unreasonable belief, in regard to Thalidomide - which caused infant death and deformity - it is unlikely a Court would consider this a reasonable concern, as it would mean that the Government was willingly putting all lives at risk who took the vaccine.
For an employer, the requirement is to sit, listen and try to understand the concerns. There is a lot of fear still about COVID-19 and a lack of trust, it's likely the employee will eventually get the vaccine but until that time you cannot force their hand if it is not necessary for their role. You can continue to require face masks and other COVID-safety measures to remain in place, until such a time as the risk for the virus is minimal. If you're struggling with an employee's opinion or expression of their opinion, get in touch and we'll help you find a road map through.