25th June 2021
To date, over 75 million vaccinations have been administered – 43.5 million people having had their first dose, and 31.8 million having received both jabs already. According to the government website, that means the uptake of people over the age of 18 in the UK have been offered the COVID-19 vaccination is now at 82.5%.
While the UK is on tenterhooks waiting for the government’s next moves with regards to the lifting of Coronavirus restrictions, many employers across the nation are preparing to welcome their staff back into the office.
But with many still feeling unsettled by the events of the past year, the question on many minds is whether employers will be able to make it mandatory for their staff to have the COVID-19 vaccination before they can return to work.
Legal Framework Surrounding the COVID-19 Vaccine
The government have made it clear that while those offered the vaccine are heavily encouraged to do so, there is no legal requirement to have the COVID-19 vaccination.
Furthermore, The Public Health (Control of Disease) Act 1984 prevents people from being required to undertake medical treatments, including vaccinations.
In addition, Article 8 of the European Convention on Human Rights ensures that individuals have the right to not be physically or psychologically interfered with.
Can Employers Require Staff to Have the COVID-19 Vaccine?
All businesses are unique, and what might work for one company could cause issues for another. With this in mind, there will be various factors to consider when deciding whether mandating vaccinations is a reasonable instruction for an employer to set.
Requiring staff to have the COVID-19 vaccination may be considered reasonable in some employment settings. For example, in a care home or other social care settings. This is because refusal could put potentially vulnerable people at risk.
Whereas, other professional services who have proven that they can continue to work effectively in a remote setting may be in a weaker position to require staff get vaccinated, as this may not be deemed reasonable.
Can Employers Dismiss Staff if they are not Vaccinated?
The key issues with mandating the vaccine are the risks that are associated with dismissing an employee who might refuse, and the potential discrimination claims from employees with protected characteristics.
Dependent on circumstances, it may be deemed reasonable for an employer to instruct their staff to get vaccinated against COVID-19. And since failure to follow an employer’s instruction can, in certain circumstances, lead to a fair dismissal, this is certainly something to consider.
However, even where the instruction to have the vaccination is reasonable, dismissal would still need to be considered very carefully, and on a case-by-case basis.
Only an employee who unreasonably refuses to have the vaccine could be fairly dismissed. Though there are specific factors that must be considered in this situation.
- The employee must be given the opportunity to explain the reason/s why they do not want to have the COVID-19 vaccine.
- The employer must consider whether their refusal on these terms in reasonable.
- The employer would have to show that they have considered other options for the employee to continue to work safely without having the vaccine. For example, can they be deployed to another role? If not, are they able to complete their work from home rather than coming into the office?
What are the Discrimination Risks of Mandating the Vaccine?
There are a lot of discrimination risks around the COVID-19 vaccination. These risks can arise as a result of compelling employees to take the vaccine or putting measures in place that are detrimental to employees who have not taken the vaccine.
These measures could include preventing an employee from returning on site as they have not been vaccinated, or not paying sick pay to an employee who has refused to have the vaccine and becomes ill with COVID-19.
The most likely protected characteristics that might be asserted by employees are:
Age – COVID vaccination in the UK has been widely rolled out based on age brackets, starting with the older members of the population and working down. All adults over the age of 18 have now been offered their first COVID-19 vaccine. However, discrimination issues may arise should an employer put a policy in place that only allows staff who have had both doses to return to work on site. Younger workers could argue that they are being treated differently due not having had the chance to get both doses as of yet.
Disability – Some individuals may have been advised not to have the vaccine on medical grounds, while others may be allergic or have a fear of needles. These people could be protected by the disability divisions of The Equality Act if they were to refuse the vaccine.
Pregnancy and maternity – The current advice for pregnant women is that they should not be vaccinated unless they are at high risk. Therefore, if a pregnant employee is selected for redundancy or are dismissed, they may argue that they are being treated less favourably due to refusal of having the vaccine because they are pregnant.
Sex – It is also likely to be the case that the above will apply to women who are planning a pregnancy.
Religion and belief – The Equality Act also protects people against discrimination on the basis of religion of belief. And as religious beliefs are not always shared by everyone of the same faith, it is likely that employers will come across some people who are happy to have the vaccination, while others will refuse on the grounds of their religion. For this reason, refusal based on this protected characteristic should be carefully considered on a case-by-case basis, and the employer should explore other COVID-secure ways of working where possible and if necessary.
In addition to these protected characteristics, some people may refuse the vaccine on the grounds that the vaccination will have inevitably been tested on animals. Ethical veganism has been found to amount to a belief by a tribunal, and is therefore capable of being protected under The Equality Act.
What Steps Can an Employer Take Where Refusal of the Vaccine is Connected to a Protected Characteristic?
Employers will need to consider what steps to take if they require their staff to be vaccinated, but an employee is refusing on grounds of a protected characteristic.
This will depend on the employer’s risk assessments and overall policy approach. For example, if the employer is operating a mandatory vaccination policy, they will need to consider whether any alternative measures could be taken to meet the business’ health and safety obligations. This could include remote work arrangements or redeployment.
If the employee is subjected to disciplinary action as a result of their refusal to have the vaccination, the employer must prove that their action was objectively justified, and why alternative measure were not considered to be appropriate.
Whether you are an employer or employee, if you are unsure on where you stand with the coronavirus vaccination in relation to your work, you should seek advice. Some useful websites are listed below:
Please note that the information in this article is subject to change, and that you should keep up to date with the most recent government guidance to ensure that your understanding is complete and accurate.
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