As of writing, over 10 million people in the UK have received a first dose of the coronavirus vaccine. For some, this shows that some sense of normality may return to the workplace in the not-too-distant future.
But can an employer require his employees to be vaccinated or refuse employment to those who are not?
This seems to be the stance taken by Pimlico Plumbers. The national plumbing company announced they were taking a ‘no jab, no job’ policy and were instructing their lawyers to work on writing the requirement into employment contracts. However, the matter is not as simple as this.
Below are some thoughts on three key questions employers have regarding the vaccine.
Can employers impose a mandatory vaccination policy to staff?
While this may depend on the workplace and the employee’s role, this will be incredibly unlikely.
By virtue of the Public Health (Control of Disease) Act 1984, the government have a range of powers to take action to prevent, control or safeguard the public against ‘infection’. Although, the government is specifically prohibited from requiring anyone to undergo medical treatment, including vaccination. The government has also reassured the public that they will not enforce any mandatory vaccination programmes.
Considering this, it is highly unlikely UK employers will be looked at favourably should they compel staff to receive vaccinations.
Understandably, employers will likely support their staff in getting the vaccination. However, some employees may have reasons for refusing the vaccination, i.e. the individual is unable to be vaccinated owing to an underlying health condition or it would be in contravention of their religious or philosophical beliefs. If an employer’s vaccination policy adversely affects or undermines individuals from a protected group under the Equality Act 2010 (age, sex, race, disability and religion or belief), it will potentially be discriminatory and may encompass high-value compensation claims.
Employers are under a general duty, pursuant to the Health and Safety at Work Act 1974, to take reasonable steps to reduce workplace risks to their lowest practical level. What this means in a COVID world is that employers should encourage staff to be vaccinated and educate them of the advantages of this towards their health and others in the workplace so that they may make their own informed decision.
This is a more risk-averse approach that encourages staff to voluntarily take-up of the vaccine.
Can I discipline or dismiss staff that refuse to be vaccinated?
Again, these situations will require a close analysis of the facts on a case-by-case basis and before taking any such action, it is recommended that you seek legal advice.
Employers are entitled to make ‘reasonable management requests’, which in this case would be asking staff to take up the vaccine. In cases where it is existing workplace policy to be vaccinated or necessary for someone to responsibly do their job, then an employer may justify disciplinary action if an employee refuses such a request. An example of this would be where an employee works in the health or care home sectors, it would be reasonable to request a vaccination if this will reduce the risks of passing infection.
It is much less likely to be a ‘reasonable management request’ where the employee has limited contact with others, is able to work from home or there are alternative measures to reduce the risks of workplace transmission.
Moreover, employers should be reminded of the need to be flexible with staff and their employees have the right to appeal any dismissal they deem unfair.
Can I refuse employment to individuals who have not been vaccinated?
There is some possibility to this, however, employers still run a major risk of claims, particularly discrimination, being brought against them.
It may be too early to consider such a measure, especially as the government does not plan on rolling out vaccines for the younger generations until autumn later this year.
This a contemporary, and rather controversial, legal issue. While we await any further government guidance or legislation on the matter, we strongly recommend that employers obtain advice before making any decisions.
Please note, this guide is for general information only and does not constitute legal advice. If you would like to discuss anything in this article, please get in touch.