The recent outbreak of the fifth Covid wave has disrupted the city’s “zero Covid” policy. Lockdowns, tightening of social distancing policies and suspended operations of designated premises have been put in place again as a result of the latest Omicron cases.
Starting from 3 January 2022, all government employees who have not received their first dose of a vaccine will be subject to testing once every three days. The Government will also implement a “vaccine bubble” arrangement at government buildings and offices. Commencing in mid-February 2022, save for those who are medically unfit for vaccination supported by a valid medical certificate, all government employees will be required to present their vaccination record when they enter government buildings and offices for work-related purposes.
The Government has repeatedly appealed to employers to encourage their staff to receive vaccination. Businesses are under pressure to follow suit. Can employers impose mandatory vaccination? We examined the legal issues regarding mandatory vaccination in the April 2021 edition of our employment newsletter, “The new measure of “vaccine bubble”: Can employers impose mandatory vaccination?” In this article, we will examine whether employers can dismiss an employee for not getting Covid jabs.
Can employers dismiss employees who are not vaccinated?
Employees have to obey a lawful and reasonable order from employers. Failing to do so is a ground for summary dismissal (i.e. termination of employment contract without notice by employer). Is getting vaccinated a “lawful and reasonable” order? It depends on the facts and circumstances.
It may be easier for employers of “client facing” business (such as airlines, F&B and hospitality) to justify mandatory vaccination policy as a lawful and reasonable order, particularly with their staff who has client-facing roles (say, flight attendants). Indeed, in September 2021, Cathay Pacific had sacked three aircrew for failing to get vaccinated after being directed to do so under the airline’s compulsory vaccine policy.
Employers are entitled to terminate an employment by giving notice or payment in lieu of notice in accordance with the employment contract and sections 6 (Termination of contract by notice) or 7 (Termination of contract by payment in lieu of notice) of the Employment Ordinance (Cap. 57) (“EO”). Whilst an employee employed under a continuous contract for a period of not less than 24 months may make a claim for remedies against an employer for unreasonable dismissal if the employee is dismissed other than for a valid reason as specified in the EO, it may not be difficult for an employer to find a valid statutory reason for doing so, which includes “genuine operational requirements of the business” and “other substantial reasons”.
The employee may consider an employer’s order for compulsory vaccination as discrimination, say, because of certain medical conditions, the employee is not suitable for vaccination. Direct disability discrimination occurs when, a person having a disability is treated less favourably than another person without the disability would be treated in similar circumstances. Indirect disability discrimination occurs when a condition or requirement is applied to everyone, but in practice affects people with a disability more adversely, is to their detriment, and such condition or requirement cannot be justified. If an employer is able to justify his order for compulsory vaccination is “lawful and reasonable”, the policy is applied to all levels of staff, and he is not singling out any employees, it may not be easy for the employee concerned to make out a case for disability discrimination.
There are no hard and fast rules when it comes to determining whether termination of employment is lawful because an employee is not vaccinated. Whilst broadly speaking, provided that if the employer has genuine operational requirements or other substantial reasons, the answer is more probably a “yes” than a “no”; each case is different and the answer will always depends on the facts and circumstances of that particular case. Terminating an employment, particularly, without notice may attract claims from employees and the consequences can be serious. Employers should avoid making hasty and uninformed decisions. If in doubt, one should obtain legal advice.