Can employer’s require staff to take the Covid-19 vaccine?
The vaccination roll out in the UK has been in place since early December 2020. Many employers will encourage staff to take up the vaccine when it is offered to them, but some businesses may see the vaccine as critical for the ongoing work of their business and may therefore wish to require staff to have the vaccine before they are able to attend work.
This is a complex issue with a number of factors to consider:
Can employers make vaccination mandatory?
When rolling out the vaccine the government has not made receiving the vaccine compulsory. Whilst most employers are likely to support their staff in getting the vaccination, it would be risky for employers to insist on vaccination in the majority of cases.
However if the vaccination is necessary in order for staff to carry out their role (ie travel overseas) then an instruction to take the vaccine could be a “reasonable management instruction” but this will very much depend on the circumstances.
There is clearly a difference between staff working in a medical setting where a refusal to take the vaccine could put those who are vulnerable at risk, and professional services where staff are able to work from home.
Before making a decision there are a number of factors that have to be carefully considered so please do contact us if you have any queries. From a practical perspective, it will also be very important to ensure that any message about the vaccine is clearly communicated to staff (and any trade unions) to ensure the messaging is clear.
If an employer does make vaccination mandatory, what can it do if staff refuse to be vaccinated?
If an employer believes an employee’s reason for refusing the vaccine is unreasonable, it could result in disciplinary action. However this should only be where it is workplace policy to be vaccinated (and this is a reasonable requirement) or necessary for someone in order to do their job.
For example in a care home, it could be a reasonable instruction to have the vaccine and a refusal to follow this may amount to misconduct or dismissal for “some other substantial reason” (SOSR). Before taking any action ensure that the instruction to take the vaccine is reasonable, has been clearly communicated and any process followed (disciplinary or SOSR) is fair and reasonable.
Before making a decision to issue a sanction or dismiss, the employer must properly consider any alternatives to dismissal, such as redeployment and working from home. Provided the employer has carried out a careful weighing up of the concerns of the employee against the needs of the business, its customers and employees, it may be possible to successfully defend a subsequent claim against dismissal in these circumstances. It is also important to listen to and take account of the employee’s reason for not wanting to take the vaccination.
Are there any discrimination issues that could arise for staff who refuse the vaccination?
The vaccination may not be suitable for all and any difference in treatment between those who have and have not had the vaccine may amount to indirect discrimination. If, for example, an employee is refused sick pay after becoming ill with Covid-19 after refusing the vaccine, then this could amount to indirect discrimination. Similarly:
- An employee may be unable to get the vaccine because of a health condition which could give rise to arguments of disability discrimination.
- There are also potential arguments of age discrimination, where the vaccine may not be suitable or available for those of a certain age.
- The vaccine is not recommended for those who are pregnant, breastfeeding or planning to get pregnant.
- Certain religious or moral beliefs could be protected in relation to particular faith groups. Similarly, vegan and vegetarian employees could also be protected owing to the animal content of the vaccine.
Individual scenarios will require a careful investigation of the facts and the reasons for refusing the vaccine to guard against any claims of discrimination. Any requirement for the vaccine would therefore need to include such exceptions.
Would we have to change employment contracts to require staff to be vaccinated?
If an employer wanted to make this a contractual requirement then yes. Introducing a contractual requirement requiring employees to have the vaccine would amount to a change in terms and conditions requiring employee’s consent to the change. Many employees are likely to object to such a requirement and without agreement, an employer would be faced with imposing the change (potentially in breach of contract), or terminating the contract and offering re-engagement on new terms. There are risks attached to both scenarios including potential dismissal and discrimination issues. Introducing such a requirement for new employees only avoids some potential legal risks, but it does not secure widespread protection within the workforce.
What are the alternatives to mandatory vaccination?
Employers could introduce a non-contractual COVID-19 policy requesting that all employees who can be immunised are immunised. Employers have an implied duty to take reasonable care of the health and safety of their employees and take reasonable steps to provide a safe workplace and a safe system of work. It is therefore advisable for employers to consider how to best achieve voluntary vaccination within their workforces. This is likely to include informing staff about the advantages and disadvantages of vaccinations.
What are the data protection considerations regarding vaccination?
If an employer processes any personal data as a result of a requirement for its staff to be vaccinated, then data protection considerations apply. Information about whether employees have been vaccinated is medical data and should be handled in accordance with Data Protection Act 2018.