Will employers be able to insist that staff have the Covid-19 vaccination?
18 December 2020
This month we have seen the start of the nationwide roll-out of the Covid-19 vaccination programme. 800,000 doses of the Pfizer/BioNTech vaccine have been sourced by the Government so far and will be administered over the coming weeks and months. Whilst the prospect of a vaccine has been anxiously awaited by many employers, taking the vaccine is unlikely to be legally compulsory for UK citizens, and so employers will need to consider how they approach discussions with their staff about the vaccine.
Is it reasonable to require staff to get the vaccination?
If employees choose not to get vaccinated voluntarily, the legal consideration is whether it is a reasonable management instruction to require them to do so.
In workplaces where it is difficult to manage the risk of Covid-19, such as because the work requires close physical contact with others, and/or where there are vulnerable people who are at high risk if they contracted Covid-19 who are not vaccinated, there will be a stronger argument for requiring staff to be vaccinated to protect the health and safety of other staff or customers.
In the NHS it has been known for staff to be moved away from wards where patients might be more at risk of getting flu than usual, if a particular staff member has not agreed to get a flu vaccination.
If the risks can be effectively managed through taking alternative measures, such as social distancing, ventilation and hygiene measures, homeworking, temporary redeployment or regular Covid-19 testing, it is more likely to be unreasonable to require vaccination. This is likely to be the case in most employment settings.
Legal risks of insisting on vaccination
It will never be lawful to force an employee to have a vaccination without their consent, as this would be likely to amount to criminal assault. There could still be legal problems, however, if employers insist on employees having a vaccine before returning to the workplace, or if employers impose disciplinary sanctions on employees or dismiss them for refusing to have it. An employer may face a claim of unfair or constructive unfair dismissal if an Employment Tribunal does not objectively believe that the decision to dismiss the employee fell within the band of reasonable responses, which a reasonable employer could adopt.
Alternatively, an employee may claim automatic unfair dismissal if an employer dismisses them because they have raised health and safety concerns, after using reasonable means to bring to their employer’s attention circumstances which they reasonably believe are harmful or potentially harmful to health and safety. This may be the case if they have legitimate personal medical concerns about receiving a vaccination that has been insisted upon by the employer.
There is the potential that some employees may not want to have a vaccine due to their religious beliefs, because they suffer from an ongoing health condition where it is not recommended that the vaccine is taken, or because they are pregnant or trying to conceive. Discrimination claims on the grounds of disability, religion and belief or pregnancy could follow if they were treated unfavourably due to them having these protected characteristics. If a job applicant was refused a role because their disability prevented them from having the vaccine, this could also amount to disability discrimination.
If an employer required its employees to be vaccinated and later an employee experienced adverse effects to the vaccine, it is possible that the employee might decide to bring a personal injury claim against the employer.
It will be necessary as part of the employer’s duty to protect the health and safety of their workforce and clients/customers, to carry out a full risk assessment. An employer can discuss the perceived benefits of getting the vaccine with their staff members, and if an employee decides they do not want to have it, it would be prudent to listen carefully to the reasons. It may be that staff have concerns that are not founded on facts, and if this is the case an employer may wish to direct them to official sources of information about the vaccine. For example, the Medicines and Healthcare Products Agency has confirmed that the Pfizer/BioNTech COVID-19 vaccine does not contain any components of animal origin, so this information may be helpful to vegetarians or vegans.
It is not yet known how soon the vaccine is going to be made available to all members of society. Therefore, employees will not have control over how quickly they can access the vaccine. Also, as two vaccine injections are required, immunisation will not be instant, and so other safety measures to prevent spread of the virus will still need to be implemented. If you decide to ask employees if they have been vaccinated, ask about the dates of both vaccination doses to help your health and safety risk assessment planning.
If would be useful to explain to employees that if they experience side-effects after having the vaccine that they let you know, especially if it would affect their ability to safely carry out their work or travel to work.
If you are an employer with concerns about dealing with the legal consequences of Covid-19 and preparations for returning to the workplace, then we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].