Employers Needled by Vaccine Refusals, Part 2 – The Role of Reasonableness (UK)
Having established in the first of this series that a request to take the covid-19 vaccination is probably a reasonable management request, then what? Can you go straight from there to enforcing it as an issue of disobedience? Only if the refusal is unreasonable.
Will refusal to take the vaccine be an unreasonable failure to comply with a reasonable management request?
As a rule, yes, but in some cases not necessarily. The question of what is unreasonable for this purpose is to be assessed having regard to the particular circumstances of the employee. It is not an objective test based on the attitude of “the man on the Clapham omnibus”.
Relevant circumstances will need to be real and substantial to make refusal reasonable. Not much liking injections is akin to not much fancying root canal dentistry – hard luck, but sometimes you just have to. However, a bad case of trypanophobia (fear of needles) could constitute a disability, as its consequences can include dizziness, fainting, palpitations and “emotional or physical violence”.
Alternatively, the blockage may be one of belief. A small and diminishing number of religious groups, especially faith healing denominations, disapprove of vaccinations on the grounds that they “interfere with divine providence”. Mainstream religions (Hinduism, Islam, Judaism) have now accepted the benefits of inoculation even though some of them contain trace bovine or porcine elements which might normally be a problem. It is not clear, given those trace elements, whether there is any approved vegan stance on immunisation, but it must be assumed that in most cases those traces will be overlooked having regard to the personal and public health benefits and the lack to date of any viable alternative treatment.
Is being an anti-vaxxer a philosophical belief allowing the employee to argue that he falls under the Equality Act and should be excluded on that basis? There are a number of conditions to a belief falling under the Equality Act protections, including that it is something worthy of respect in a democratic society. All reputable scientific opinion would suggest that this would not be true of the anti-vax movement (the WHO has even described it has one of the Top Ten health threats to the world). Nonetheless, we are still left with reports from August 2020 that scarcely 50% of Britons would be certain or very likely to get vaccinated against Covid, with one in six stating this to be either very unlikely or a definite no-no. Surely so many people can’t be wrong, and a belief held by such numbers must be worthy of respect, at least legally-speaking? It may not matter for practical purposes, but the legal position might well be decided, weirdly, by reference to vegetarianism. In Conisbee –v – Crossley Farms Limited last year, the Employment Tribunal indicated that to make vegetarianism into a philosophical belief protected by the Equality Act, there needed to be coherent belief system behind it. The wide range of different reasons for which people cease to eat meat was therefore fatal to its claim for statutory protection. A similar panoply of justifications exists for an anti-vax stance (distrust of Big Science or Big Pharma, bad childhood reactions, historic drug scandals, religion, believing that Bill Gates is using it to fill you up with really tiny microchips, etc.), and so on that ground also, statutory protection for the views of anti-vaxxers seems unlikely.
It is possible that the government will allow some exceptions to any generally-mandated encouragement to take the vaccine. These might cover those who are immuno-compromised or on belief grounds in the same way as Hindus on building sites are not obliged to wear safety helmets because they are incompatible with turbans. We think it unlikely to be a wide exception – put crudely, not wearing the helmet is that employee’s risk, while his not having the vaccine is also everyone else’s. There will be very strong social order and public policy reasons for not allowing one person’s sensibilities to impinge on the health and wellbeing of others.
Given the shifting terms of the government’s guidance in relation to most Covid measures, employers will be well advised to keep a very close eye on what it says in relation to the vaccine, to follow it fully and to keep a hard copy of the version relied upon, in case (like some of that relating to the CJRS) it is overridden and then in traditional Nineteen Eighty-Four style, ceases ever to have existed.