As lock down restrictions start easing and many employers consider the re-opening of offices in accordance with the government’s roadmap, I am addressing the question on many employers’ lips,” can they insist on their employees taking the Covid vaccine?”.
The short answer is no they cannot. There is no law in place forcing people to have the vaccine and there may be legitimate reasons why a person cannot have the vaccine, for example because of health reasons, religion, or pregnancy (there is no data on the effects of the vaccine on pregnancy therefore pregnant women are currently advised against having the vaccine routinely). It would arguably be a breach of a person’s human rights to force them to have the vaccine against their will and could also constitute a criminal offence for unlawful injury – a vaccine requires an individual’s voluntary consent.
If there is a legitimate reason the employer considers that their employees must be vaccinated the employer should seek legal advice before trying to implement a mandatory vaccine policy or take action against an employee who is refusing to take the vaccine. As to what is legitimate is currently untested and time will tell whether the tribunals consider that a global pandemic is reason enough, however, it is more likely to involve more specific concerns such as those working with the vulnerable and high risk categories for example, the health care sector.
It is important that an employer understands the reasons why an employee is refusing to take the vaccine. Talk to the employee involved and seek to allay their concerns and explore what alternatives there might be. Being able to evidence such discussions will also be critical if it is later decided to take any steps to discipline or dismiss. The employer must ensure that if a person cannot have a vaccine due to any health reasons or because of pregnancy, that they do not discriminate against the employee by taking any unlawful action against them.
Employers should consider how they can continue to support individuals refusing the vaccine. This will include ensuring the work environment is Covid-19 secure, having risk assessments in place and ensuring the work force are maintaining social distance. However, if an employee’s refusal causes the employer to have to make unreasonable changes which are above and beyond what the Government’ s recommendations are at the time (and these are changing as the vaccination rate increase and infection level decreases), then the employer will have to make a decision as to whether to continue with employment. The disciplinary/dismissal route should only be used after a careful and considered discussion with the employee about their refusal and only if satisfied that all reasonable alternatives have been exhausted.
If the employee has simply chosen not to take the vaccine and there is a legitimate reason the employer feels it is necessary (as advised above, legitimate in this context is currently untested) the employer could make a “reasonable instruction” that an employee does so especially where their role may put others, who are vulnerable at risk, or put undue pressure on an employer to keep them safe. Refusal to follow a “reasonable instruction” could pave the way to a fair dismissal, most likely ‘dismissal for some other substantial reason’ (SOSR).
There is the risk if an employer dismisses an employee for a refusal to be vaccinated, that a dismissal could be found to be unfair on the following grounds:
· As noted above, an employer cannot compel an employee to have the vaccine so arguing it would therefore be fair to dismiss someone for refusing to do so could be difficult;
· Consider the fairness of making the vaccine mandatory. There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual’s privacy, particularly when there may be other (less invasive) ways to minimise the risk of transmission in the workplace;
· Some people will genuinely have concerns about possible side effects and the testing programme undertaken before approving the vaccines; and
· There will be a small proportion of people who will have adverse reactions.
If you would like further legal advice regarding vaccine policies within the workplace or for any other employment law or HR advice, please contact me on 0208 979 6453 or via email at email@example.com.