Feb 2021
Recent news reports indicate that some employers are considering making it compulsory for their staff to have a Covid vaccination. Is this a lawful, or even sensible, move by employers?
Your legal rights
Whilst the majority of the population will probably want to have the vaccine, there will be a significant number who will have legitimate objections. The various available vaccines have only recently been created and even though they may have been approved for use, our knowledge of their effectiveness and safety is still developing.
People in certain groups may not wish to be vaccinated. For example, the elderly, vulnerable or those with medical conditions or pregnant women. Some might have religious or philosophical objections to being vaccinated. We know that various conspiracy theories about the vaccine have been prevalent for some time and some people may believe them and refuse vaccination for that reason.
Employees and candidates for employment have various legal rights that are likely to make a policy of mandatory vaccination a risky strategy for employers. Claims for indirect discrimination could be brought by those with protected characteristics of age, disability, pregnancy, religion or belief.
An employee dismissed for refusing the vaccine may have a strong claim for unfair dismissal if they have two years’ service. Even employees with less than two years’ service might be able to succeed in a claim of automatic unfair dismissal if they can show that the dismissal was for whistleblowing or for raising a health and safety issue.
Employees suspended without pay or given alternative duties on less than their normal pay may be able to claim unlawful deduction from wages, breach of contract or constructive dismissal. Employers might be able to use the Coronavirus Job Retention Scheme to furlough staff suspended for refusing the vaccination and pay most of the salary of those staff whilst the scheme remains in place. However, this is not a long term solution and only reduces the risk of claims rather than avoiding them altogether.
ACAS guidance suggests employers should support staff to be vaccinated but not force them to have the vaccine although it recognises that there may be cases where mandatory vaccination is necessary, for example, where an employee has to travel abroad for work. One sector where employers might be on firmer ground adopting a mandatory vaccination policy is care homes. There an employer’s argument that staff must be vaccinated to safeguard vulnerable residents has some force. But such employers must be careful about what information they are relying on to justify their policy. After all, at this time it is not known precisely how effective vaccinations are and whether they prevent you from passing the disease to others even if you have been vaccinated.
Employers in favour of vaccination because they believe it means they can swiftly reduce or end Covid-secure measures such as remote working, face masks, social distancing, limiting contact and hygiene measures are probably acting prematurely. Employers are under a statutory duty to provide a safe working environment for staff and it is too early to say at the moment how effective vaccinations are at preventing transmission in the workplace.
Rather than forcing staff to have vaccinations, most employers would be well advised to concentrate on educating staff around vaccination and continuing the Covid-secure workplace measures referred to above. Employment tribunals are likely to be highly sympathetic to claimants dismissed or who suffer a detriment as a result of refusing vaccination.
For further advice and information please contact our Employment Team.
