Employers within their rights to fire staff who won’t vaccinate – SAHRC

Employers are within their rights to fire staff who won’t vaccinate, especially if the company has imposed a mandatory vaccine policy.

From a legal standpoint, it would appear that employers who dismiss an employee for failing to be vaccinated will not have infringed on that person’s constitutional rights, nor will this constitute unfair discrimination.

This interpretation of the law is supported by the South Africa Human Rights Commission (SAHRC). Here’s why:

The right to life vs right to bodily integrity

Some commentators view mandatory vaccinations as an infringement of hard-earned rights to bodily integrity, alternatively religion, belief or opinion.

But Herbert Smith Freehills employment lawyer Jacqui Reed says the law allows for mandatory vaccines in circumstances where there is an unprecedented health tragedy of national and international proportions.

The Covid-19 pandemic has claimed more than 255,000 lives in South Africa since May 2020 and the data unequivocally supports vaccine efficacy.

The SAHRC is of the view that the current laws will support mandatory vaccines when weighed against the basic right to life.

“Given that the pandemic is an existential crisis that affects all human beings and implicates both rights and responsibilities, it is highly likely that a general law mandating vaccination will pass constitutional muster,” said the commission earlier this month.

Section 36 of the Constitution provides that a law of general application may limit a right in the Bill of Rights, provided the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

It must also take into account all the relevant factors, including the nature of the right, the importance of the purpose of the limitation, the nature and extent of the limitation, the relation between the limitation and its purpose and less restrictive means to achieve the purpose.

Reed explains: “In most instances, it is probable that employees would object to being vaccinated on the basis that it infringes their right to bodily integrity.

“Importantly, it is only the inherent right to life and human dignity that is entirely non-derogable and therefore protected.”

The right to bodily integrity has its limitations when weighed against the basic right to life.

“The purpose of the limitation of the right to bodily integrity, for example, will protect vulnerable employees from infection and respond to a global health crisis which has been relentless in its devastation of lives and livelihoods for the last 18 months,” said Reed.

Vaccination is in the interests of colleagues and communities at large

Reed explained the limitation is not ongoing in the sense that regular injections are required.

“It is also not particularly invasive and in most instances, does not result in any severe side effects,” she said.

The efficacy of the vaccine is strongly supported by the available scientific data and has resulted in significantly fewer cases of serious illness, hospitalisation and death.

Critically, there are no less restrictive means to control the spread of Covid-19 which are as effective as the vaccine.

Reed says: “Undoubtedly, this is a human resource management issue and the ability to persuade employees to vaccinate is the preferable approach.”

If employees remain unconvinced, then employers would be within their right to terminate that employee contract.

Companies need a ruling on the constitutionality of mandatory vaccination

Employers appear nervous to impose mandatory Covid-19 vaccines in their companies, despite a directive from the Department of Employment and Labour that allow employers to use their discretion.

Last June, the department permitted employers to impose mandatory vaccination policies if they meet certain consultation requirements.

Reed said a judgment on the constitutionality of mandatory vaccination workplace policies may be required to encourage more businesses to introduce them.

Business Unity South Africa announced this week that it intends to approach the high court for a declarator “in order to provide certainty and give employer’s confidence that they are on the right side of the law”.

“Given the decline in demand for the jab and low vaccination rates which expose South Africa to the real risk of a fourth wave in December 2021, an application seeking a declarator may be the best way to increase vaccination rates,” said Reed.

Discovery Health was the first large South African employer to announce that it would be implementing a mandatory vaccination policy at its workplace, with effect from January 2022.

Several other large employers have followed suit, including Sanlam, Curro and Life Healthcare.

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