Can employers mandate vaccination against Covid-19?
by Tamara Barbeary
As more people are receiving the COVID-19 vaccination in the UK, employers are starting to consider the implications for their staff. A survey of 750 executives carried out by HRLocker revealed that 23% of employers plan to mandate vaccination against COVID-19 for their staff. Some companies have even pledged to dismiss or decline to hire anyone who refuses to take the vaccine.
Can employers mandate vaccination?
The short answer is no.
The government has not passed any legislation making COVID-19 vaccinations compulsory and the Public Health (Control of Disease) Act 1984 explicitly prevents a person from being required to undertake medical treatment, including vaccinations. Also, forcing an employee to have an injection could constitute an unlawful injury with criminal liability. It could also amount to an interference with their human rights, specifically, the right to respect to private life.
Nevertheless, there may be workplace-specific arguments open to employers, to support vaccination as a precondition of work:
- ACAS guidance on working safely during Coronavirus states that employers should consider whether the vaccine is necessary to do a job, for example where travel abroad is essential to the role and vaccination is a prerequisite for travel.
- Employers have a duty under the Health and Safety at Work Act 1974 to ensure a safe working environment and reduce workplace risks. Requesting and enabling vaccination of their employees is likely to be a reasonable step for employers to take to comply with their obligations. However, health & safety considerations would also need to take account of any risks associated with having the vaccine for particular employees. Whether the vaccine could be mandated as a health and safety requirement could in theory be deemed reasonable in certain circumstances, but this is unlikely given the fact that the Government has not mandated it.
Can employers dismiss staff who refuse to take the vaccination?
The short answer is yes, if it is considered that the employee has refused to comply with a reasonable management request, but they would be exposing themselves to potential claims:
Under the Equality Act 2010, employees and workers are protected from discrimination in the workplace if discrimination is on the grounds of any of the nine protected characteristics such as disability, pregnancy, and religion or belief.
Where an employee cannot be vaccinated due to a medical condition which renders them disabled under the Act, for example, a decision to dismiss that employee due to their refusal to be vaccinated could result in a claim for discrimination arising from disability or indirect disability discrimination.
A decision to dismiss an employee due to refusal to be vaccinated as a result of their religion or belief could also amount to discrimination. An employee may refuse vaccination on the basis that the ingredients contain animal products such as pork gelatine. This is not the case with COVID vaccines from Pfizer, Moderna and AstraZeneca but there is concern over vaccines from other companies which have not yet released their ingredients list.
Vegans who refuse vaccination because of animal based ingredients may also be able to argue that their belief is protected under the Act. It is less likely that simply holding anti-vaccination beliefs would be deemed a philosophical belief under the Equality Act 2010 and worthy of protection; however, this argument is still to be tested in the Courts or Tribunals.
The employer can still justify their actions if they are a proportionate means of achieving a legitimate aim. Whilst identifying the legitimate aim may be straight forward (e.g., the health and safety of the workforce), dismissing an employee for vaccination refusal may not be a proportionate way of achieving that aim. An alternative for an employer could be to regularly test their employees or allow remote working for example.
Employees with over 2 years’ service may be able to claim unfair dismissal for their employer’s decision to dismiss them due to a vaccine refusal. However, where the employer cannot utilise an employee because customers refuse to deal with someone unvaccinated, or where the safety of vulnerable clients would be compromised, a dismissal may be fair for ‘some other substantial reason’.
It should also be noted that certain dismissals are deemed to be automatically unfair. In the majority of such cases, there is no service requirement of two years. This is an area that many employers overlook and fall foul of. For example, if an employee has been dismissed after asserting a statutory right or making a protected disclose in connection with the mandatory vaccination policy or alleged discriminatory treatment having refused the vaccine, a claim could be brought regardless of how long the employee has been employed.
Employers should carefully weigh up the concerns of an employee against the needs of the business, look at alternatives to dismissal before taking any action. The employer would then need to follow a fair procedure, such as giving warnings about the consequences of a refusal to be vaccinated. If the employer can then show that it acted reasonably in all of the circumstances in treating the refusal as the reason (or the principle reason) for the dismissal, it may be possible for an employer to successfully defend the claim in limited circumstances.
Can employers require evidence of vaccination?
Employers would need to give careful consideration to whether it would be appropriate for their business to require evidence of vaccination. Such a requirement would give rise to data protection implications given that health information is special category data. The ICO has published a useful guidance regarding the data protection implications for organisations during the pandemic, including vaccinations – click here.
Employers are advised to consider the implications of the vaccination roll out as part of their risk assessments. Ultimately, the best route will always be to encourage staff by positive campaigns promoting the benefits of vaccination, open dialogue and consultations. Employees should be given the opportunity to express their concerns and rationale for refusing to be vaccinated. If issues arise, specific advice should be sought before taking any action.
If you would like to discuss the specific circumstances of any given case, you can contact our specialist employment team.
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