There are good arguments for expecting school staff to get their vaccination against Covid but any policy must consider those who can’t or won’t, writes Paman Singh
News of a vaccine is the light at the end of a very long tunnel for many teachers and school staff. Discussions around where in the pecking order teachers will fall in its rollout are ongoing. And with so much still unknown, there is already speculation that restrictions will be placed on those who don’t receive it. While the government maintains it will not impose such restrictions, it’s hard to see how it could stop other organisations from doing so.
Like all other employers, schools are required by law to ensure all “reasonably practicable” steps are taken to reduce workplace risks. They will almost certainly have a positive obligation to strongly recommend all staff get vaccinated, especially given the obvious and demonstrated risk of virus spread in the classroom.
However, there remain those who, for reasons varying from religious beliefs to health concerns, can’t or won’t take the vaccine. They could present schools with a challenging and complex issue.
Government has made clear vaccination will not be mandatory, and an employer can’t force an employee to take it up. However, employers may have a responsibility to furnish employees with guidance and advice on the vaccine’s benefits. Active engagement in this process may be necessary for employers to provide evidence of compliance with their duty under the Health & Safety at Work Act.
Employers will likely have some manoeuvrability
In addition to this duty to inform, employers will likely have some manoeuvrability. If an organisation can show that the requirement for an employee to be vaccinated is a reasonable management instruction, then any refusal could justify disciplinary action, perhaps even dismissal, if deemed unreasonable. This would likely apply in circumstances where the employee’s role puts them in a position where some element of close contact is unavoidable, such as schools.
But although it may feel like education sector employers would be on firm ground requiring staff vaccinations against this deadly virus, much of the legal argument will depend on the particular circumstances, including the employee’s reasons for refusal. For refusal to be deemed reasonable there would need to be significant justification. For example, a fear of needles wouldn’t cut it. Trypanophobia – a fear of needles to such an extent that the sufferer could be defined as a disabled person under the Equality Act – could.
Similarly, certain religions may take exception to the use of animal products in the vaccine. However, attempts by vegetarians, vegans or even anti-vaxxers to justify their stance on similar grounds are unlikely to be successful.
Further, an employee might refuse on the basis that the contents of the vaccine are incompatible with their medication, or that their health condition otherwise renders them unable to have the vaccine. Where their health condition amounts to a disability, this introduces additional considerations for the employer, particularly as they have a duty to make reasonable adjustments for disabled employees.
One thing is for sure, the situation is not as straightforward for employers as it may appear. It is going to be vital to initiate open and sensitive conversations with staff to avoid situations where genuine reasons are overlooked or dismissed.
The additional work around these conversations will be crucial too. Organisations should consider engagement with trade unions and employee representatives now if mandatory vaccination is a consideration. Likewise, having a robust vaccination policy in place that clearly establishes what is required, by whom, and the process in the event of non-compliance will be crucial. That is something all organisations should be considering and seeking advice on now.
Like so much of the past year, this area of employment law is unprecedented. This high-profile and extremely complex area will almost certainly throw up difficult decisions. Schools should take appropriate pre-emptive steps to put themselves in the strongest possible position.
By seeking advice early, school leaders can enter into conversations with staff before the issue goes from urgent to critical.