Jabs for Jobs – COVID vaccines and EL/PL considerations

18 Jan 2021

At the date of writing, there are three COVID vaccines licensed for use in the UK, offering the only realistic exit from a cycle of tightening and loosening restrictions on everyday life. First to be licensed was the Pfizer/BioNTech vaccine, followed by the Oxford/Astrazeneca vaccine and more recently the Moderna vaccine. There has been much press reporting of a number of surveys which suggest that voluntary take-up of the vaccine may be lower – in fact much lower – than the level which the scientific community would regard as providing broad coverage across the country, and the UK government has indicated that it has no intention of making vaccination mandatory.

The position of employers

So where does this leave employers, risk assessing their businesses and seeking to discharge their duty to take reasonable care for the health and safety of their employees, and of course their customers, suppliers and other organisations into contact with whom they come on a day-to-day basis?  Pimlico Plumbers is an organisation which has not shied away from controversy in relation to employee relations in recent times, and is a name now synonymous from its association with legal precedents relating to gig economy workers.  It is often said that no publicity is bad publicity and the company found itself back in the news at the end of last week with reporting of its intention to make COVID vaccination mandatory for its staff.  What issues relative to EL and PL coverage particularly does this raise?

Firstly, and perhaps obviously, on the basis that it would be an assault and battery forcibly to vaccinate staff, vaccination could only be "mandatory" in the sense of attracting adverse consequences in the employment relationship for failure to comply.

From the perspective of employment law, it seems unlikely that many employers will be able universally to compel employees to have the vaccination.  However, much will be linked to the employer’s risk assessment relating to its own business – for example organisations operating in the health and care sector, or in other areas where close contact is involved, such perhaps as some beauty treatments, hairdressing and such like, may have a slightly different risk assessment than for example a financial services organisation in which the majority of staff can if necessary continue to work remotely.

It may very well be that in some circumstances an employer's insistence on vaccination may be a reasonable management request. The fundamental purpose of course is to protect other staff and members of the public. Perhaps paradoxically, the protection of the individual member of staff by the vaccine is incidental. This is a familiar concept; when the wearing of masks first began to be encouraged in 2020, before it was mandatory in certain situations, it took a concerted public awareness campaign to cement the message that the purpose was not the protection of the wearer, but rather protection of others from the wearer. The point is the same in relation to vaccination.

Statutory discrimination pitfalls and indemnity policy risk

The issue of a reasonable management request is far from the end of the story, however.  There may be employees who are advised against vaccination because of health concerns relating to history of allergy, or due to other health issues including for those who are pregnant or attempting pregnancy.  Others may say that due to various vaccine components, they have religious reasons for objecting to vaccination, raising the possibility of statutory discrimination (and indeed victimisation or harassment) claims if those refusing on those grounds are treated less favourably than fellow employees agreeing to vaccination.  Some trypanophobic employees may cite fear of needles to avoid vaccination, but transient phobic reactions may be unlikely satisfy the “disability” test under the Equality Act 2010 so as to provide a platform for disability discrimination claims.   The question may also arise as to whether the relatively small but perhaps alarmingly growing number of people who regard themselves as "anti-vaxxers" would be regarded as having a philosophical belief in this respect which is protected by the Equality Act 2010 approach to discrimination.  It is perhaps unlikely that this would amount to a philosophical belief for the purposes of the 2010 Act – the wide range of different reasons generally advanced for objecting to vaccination in principle is probably too disparate to the amount to a coherent belief system as would be required for the purposes of the test, but it is not implausible to imagine that this argument may be advanced, and tested in the courts.

Policy wordings vary surprisingly in relation to EL and PL cover with respect to trigger and Bodily Injury definitions.  Many policies adopt what might be regarded as "traditional" Bodily Injury definitions which require recognised psychiatric illness to qualify as Bodily Injury; however there are also many policies currently in circulation which cover a wider range of trigger events, whether intentionally or unintentionally, with a number of wordings triggering at a lower threshold than psychiatric injury, covering some aspects of mental distress, anxiety or upset.  Remedies for discrimination arise under statute, rather than at common law, and the Equality Act 2010 provides a compensatory remedy for injury to feelings; wider policy wordings are likely to cover at least some injury to feelings claims in the circumstances of discrimination.  Compensation can also be awarded for personal injury in discrimination claims to which EL and PL polices would, of course, respond.

The Equality Act 2010 uses the term ‘workers’ so it is not only employees who are protected by discrimination legislation. Casual staff, agency workers and even those that the employee believes are self-employed may be able to bring a claim. It also applies to prospective workers, so failing to recruit a person who declines to have a vaccine may also be discriminatory. Consideration will need to be given to EL policy definitions of employees to assess which policy will respond.

Avoiding successful claims will require focusing not only on the practical steps that can be taken to enable staff to continuing working without a vaccination. Demonstrating that an employer has openly  communicated with its staff to give careful consideration to alternative work arrangements will only be the start. It will also be crucial to establish that the proper procedural steps have been followed. Failure to comply with the appropriate Acas guidance, for example, may well result in a successful claim even if the employer had little alternative but to terminate employment.

Other employment issues and indemnity policy risk

In any event, much has been publicised over the last 10 months or so about the impact on mental health generally of the pandemic, particularly in an employment context.  To the extent that pressure in relation to vaccination becomes a mental health tipping point for some, it is not difficult to see objections to any corporate policy on vaccination bleeding into the potential for stress or psychiatric injury claims.

Additionally, and conversely, what of the risks where a more relaxed and personal choice-focused approach is taken to vaccination by employers?   Pure employment rights issues have traditionally never troubled liability (as distinct from EPL) insurers, legislation effectively creating a statutory bubble in which unfair and constructive dismissal and other statutory remedies are dealt with on a purely financial loss and/or practical basis between employer and employee.  However it is worth noting s44(1)(d) of the Employment Rights Act.  S44 falls under Part V of the 1996 Act, which provides protection to employees who suffer a “detriment” as a result of a wide range of defined circumstances.  Amongst other things health and safety-related, s44 provides that where employees leave or refuse to attend work, “in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert” they have the right not to be subjected to a detriment.  A detriment could include anything from passing over for promotion or exclusion from opportunities to docked pay or disciplinary action. 

This has obvious potential for use by currently un-vaccinated employees (whether because they are still waiting their “turn”, or because they cannot be vaccinated for health reasons and are clinically vulnerable) where an employer chooses not to mandate vaccination of staff generally.  The potential difficulty here for liability insurers is that in 2018 the EAT held in South Yorkshire Fire and Rescue Service v Mansell & Others that all forms of detriment under Part V of the 1996 Act could give rise to claims for injury to feelings (and therefore personal injury) under s49 of the Act.  Similar risks therefore arise for liability insurers as in the case of the statutory Equality Act claims discussed above.

The PL perspective

It may also be difficult for employers to insist on vaccination of "front-line" staff in their own organisations in circumstances in which they permit customers to come onto their site, or attend to service users, without an insistence on customer/service user vaccination.  That concern, coupled with a recognition of the duty to take reasonable care for the safety of service users/customers themselves, may act as a driver for a stricter policy on vaccination. 

Much may depend on how government guidance develops in the coming months, as vaccination becomes more widespread, as regards the role of vaccination of staff in COVID-safe risk assessment.  In this respect, it has of course been reported in the press that some airlines have taken the step of requiring evidence of vaccination before allowing passengers to fly; whether that is a sustainable policy for any organisation generally in the absence of a formalised structure for the issue of "vaccination passports" may be open to debate.  Such a strategy also gives rise to the potential for fraud or forgery and difficult questions for organisations as to the robustness of their procedures for checking the authenticity of any such vaccination evidence from individual customers or service users.

The impact in relation to PL cover is may be the subject of further argument in due course as the scope of various COVID-related PL exclusions introduced on renewals occurring since the start of the pandemic begins to be argued.

Data issues

Any organisation seeking to play an active role in the management of vaccination issues relating to its staff, or potentially customers, is going to have to recognise the attendant risk which comes with the need to process health-related sensitive personal data  – and this is the category of data into which information about an employee's vaccination status would fall. 

It also involves actively ascertaining, processing and storing information not only about vaccination status but about individual employees’ health vulnerabilities.  It is further of course the case that, depending how workplace routines or rotas are organised, it may be evident from those rotas or communications in relation to them who has been vaccinated and who has not, or alternatively who may be clinically vulnerable.  There are therefore likely to be difficult data privacy issues to navigate and of course the GDPR is a yet further example of legislation which provides for a statutory compensatory remedy for breach which can give rise under certain policies to trigger for sub-clinical distress or upset; claims for actual psychiatric injury are also possible under the same compensatory provisions.

Efficacy and Practicality

The government in the UK has of course set out a scheme of prioritisation for individuals to receive the vaccine by age and vulnerability.  The vaccine is not currently privately available and it is not open to employers (at this time at least) to operate programmes of vaccination for staff as has been the case to date with, for example, the influenza vaccination.  In the case of a young and healthy employee, for example, who cannot realistically perform their job from home, the question of whether a request to stay away from the workplace pending vaccination is a reasonable management request may have to be viewed through the lens of the government's envisaged time-line for vaccination, which would currently put such an employee in the position of expecting vaccination in around September this year.

One final consideration potentially relevant to any policy of insisting on vaccination insofar as possible at work or in relation to the provision of services relates to the efficacy of the vaccines themselves.  Firstly, none of the currently available vaccines are 100% effective, and, of course, given that mass vaccination programmes around the world are still in their early stages it is not at present known how long antibodies generated by vaccination will provide protection.  Related to that, not all vaccines are born equal.  Although not currently licenced for use in the UK, press reporting last week suggested that the Chinese Sinovac vaccine has been found to be only just above 50% effective when deployed in Brazil – substantially less than the three vaccines currently licence for use in the UK.  It is inevitable as time goes by that a wider range of vaccines will be licensed and all will have slightly different efficacy profiles.

Further, and perhaps more importantly, it is currently thought that vaccination and the effective development of antibodies in providing protection to the individual does not prevent a vaccinated individual being a vector of disease.  For example, it is currently thought that a vaccinated individual encountering the virus in the community can still carry the virus in their nose, mouth etc and thus transmit it to others without being infected in the traditional sense themselves.

Concluding thoughts

Fundamentally, the essence of the relevant duties, whether to employees or members of the public, is to take reasonable care for the safety of others.  At the heart of the law of tort, or delict as the case may be, has always been an appropriate approach to the balance of risk.  Employers who introduce policies requiring vaccination would in many cases be taking a reasonable approach to the balance of risk in the current circumstances, depending on the nature of the close contact risks their operations produce.  However as will be appreciated from the matters discussed above, there is another law (other than the law of tort) at work here, which is the law of unintended consequences, and there is a complex array of potential pitfalls to navigate, some of which give rise to "pure" Employment law difficulties, whilst others have the potential to give rise to consequences triggering indemnities under EL and PL covers. 

Brokers will no doubt wish to work with policyholder organisations as they start to build vaccination policies in order to ensure a comprehensive understanding of the risks, and underwriters will need to be sure that on renewal they too have clear visibility on the issues as they affect each policyholder’s circumstances – preferably before policyholders rush to follow Pimlico Plumbers’ lead.

 

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Chris Fletcher

Chris Fletcher

Partner and Head of Occupational Disease,
Manchester


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