Debbie Sadler, senior associate on the employment team at Blaser Mills Law, discusses whether or not employers are legally entitled to enforce compulsory COVID-19 vaccination on their workers
As the UK government continues to roll out the COVID-19 vaccine, anticipation mounts of a ’return to normal’ in the next few months. However eagerly awaited this may be, it presents many business owners and HR teams with a number of new challenges. For example, can things simply return to the way they were without any additional checks and balances? If so, can this happen straight away, or should it be a gradual process?
Given the prominence and importance of the vaccination programme to the Government’s COVID-19 response, some organisations may want to encourage their employees to accept the vaccine in the belief that this is the best strategy for returning to work. However, the government has confirmed that receiving the vaccination will not be a legal requirement, so can an employer force its employees to be vaccinated and, if so, what are the risks associated with this?
While having a high proportion of vaccinated employees would seem advantageous in reducing the spread and risks of COVID-19, what happens if an employee refuses to be vaccinated?
Can an employer enforce compulsory vaccination?
Companies have a legal obligation to protect the health and safety of their workforce and provide a safe working environment. Many have spent significant amounts of time and resource implementing government guidelines to meet these obligations during the pandemic, and some may feel that ensuring staff are not placed at risk by working alongside colleagues who have not received the vaccine is in accordance with best practice. However, this is a sensitive area and employers that feel strongly about requiring employees to obtain the vaccination need to have a compelling argument for doing so. This would include reasons why other COVID-19 measures, such as social distancing, home working and mask-wearing were insufficient to mitigate the risks.
As the government has confirmed vaccination is not compulsory, businesses have no statutory obligation to vaccinate their workforce. They would, therefore, need to justify the policy and keep a written record of their reasoning. This could include, for example, vaccination being necessary to protect colleagues and customers, or because the employee must travel to countries which require proof of vaccination.
Even with a strong business case, enforced vaccination could still be challenged on legal grounds. For example, an employee could argue that the policy was contrary to their human rights because it impacted on their right to a private life; employers would need to ensure compliance with the provisions of the Data Protection Act 2018 and the General Date Protection Regulations (‘GDPR’) because the policy would involve processing and storing medical data. Equally, if an employee had an adverse reaction to the vaccination, they could bring a personal injury claim against their employer for any lasting illness or injury.
These and other issues would need to be considered and addressed as part of any assessment and justification for introducing enforced vaccination.
For existing staff, the terms of their agreement with the employer are contained in their contract of employment. Prior to the pandemic, few contracts anticipated a medical emergency of this scale, therefore few, if any, contain clauses dealing with testing and vaccination in the workplace. The introduction of compulsory testing would, therefore, amount to a change in terms and conditions. Staff would need to be consulted on the proposed change and reasons for it and would need to consent to the proposal before it could be introduced.
Some staff would likely agree voluntarily but others may not, meaning employers would need to decide what to do in such circumstances. Some may content themselves with just vaccinating those willing to agree (bearing in mind workforces are fluid) and feel that a level of vaccination, in conjunction with other measures such as mask wearing and social distancing provide a safe working environment.
Going forward, employers could include this provision in their contracts of employment for all new staff but, as indicated above and below, this is not without risk and so should be carefully considered. Much will depend on the nature of the business and the role the employees perform. For example, the risks and implications of contracting COVID-19 in a clinical or care setting are different from those faced by employees in the logistics sector. Employers must consider their own circumstances and tailor their policies accordingly. However, even if the employee accepts this requirement, care must still be taken when enforcing the term.
Do employers have the right to dismiss employees who refuse the vaccine?
If an employer has the contractual right to require an employee to get vaccinated and they refuse, the employee would technically be in breach of contract. This could result in the employee being disciplined and ultimately dismissed. However, employers should approach any such decision with caution because dismissing an employee for any reason is not without legal risk.
Employees with more than two years’ continuous service have the right not to be unfairly dismissed. In an employment tribunal, the burden of proof would be on the employer to show why they had dismissed the employee, (with reference to the lawfully permitted reasons in the Employment Rights Act 1996), and that they had followed a fair and reasonable procedure. Whether or not the employer would succeed in defending a claim for unfair dismissal would depend very much on its justification for vaccination and the steps taken to explain this to the employee.
What are the discrimination risks?
Dismissing or subjecting an employee to a detriment for refusing to be vaccinated could lead to claims of discrimination. Some employees may be unwilling to receive the vaccine due to underlying health conditions. If these medical conditions meet the definition of a disability under the Equality Act 2010, taking any kind of action against them – such as excluding them from work or reducing their pay – for refusing to have the vaccine could result in claims for disability discrimination.
In addition, if an employee refuses to be vaccinated on the grounds of religious or philosophical belief and is sanctioned or dismissed because of this, they could also bring claims of discrimination. The implications of this could be wider than first thought, for example, concepts such as a belief in climate change and ethical veganism have been found to meet the definition of a philosophical belief under the Equality Act 2010. Some have speculated that those holding anti-vaccination beliefs could also fall within the definition which, if true, would certainly have implications for employers wanting to introduce compulsory vaccination policies.
The government clearly believes that mass vaccination is the surest way out of the pandemic, therefore it is not surprising that many companies want to support and accommodate this policy as far as possible.
Employers can certainly encourage staff to get vaccinated by, for example, explaining what they consider the benefits of vaccination to be and the positive impact they believe it would have in the workplace. They could even incentivise them by allowing paid time off to attend appointments. However, care should be taken not to unduly pressurise or mislead staff and the best approach is to allow individuals to make their own informed decision about whether to have the vaccine once it becomes available to them.
As always, the best advice is to consult and communicate with staff and to approach the subject of vaccination with caution and understanding.
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