Can employers insist employees are vaccinated?

With the Covid-19 vaccine now being rolled out across the UK, employers may be asking whether they can ask employees not to come back into the workplace unless they have had the vaccine. Requiring employees take up the vaccine raises a number of issues for employers, and could have serious implications.

Melanie Stancliffe, partner of the employment team, was featured earlier this year on the BBC World Service talking about this topic. To listen click here (coverage starts at 19:08). 

We have explored the topics Melanie discussed in her interview in more depth below.

 

In the UK, an employer does not have the right to force employees to have the vaccine. Individuals working in the UK have the right under public law to not be interfered with physically or psychologically, and this includes mandatory vaccinations. Furthermore, there could also be criminal implications as forcing individuals to receive a vaccine against their will could constitute unlawful injury. Freely given consent is required for such medical intervention.

There are new rules coming into play from 11 November 2021 meaning that anyone who works inside a Care Quality Commission (CQC) registered care home which provides accommodation for people needing nursing or personal care in England must be fully vaccinated against COVID-19, unless they are exempt. This will include (but is not limited to) all staff, agency workers, contractors (to include tradespeople, occupational therapists and hairdressers) and volunteers in addition to any residents of Scotland and Wales who work in a CQC-registered care home in England.

Employers in settings other than CQC registered care homes, where employees have close contact with the clinically vulnerable will want to ensure a safe working environment, which could be done by enabling the vaccination of their employees. The proximity of employees to patients and vulnerable individuals makes the nature of this work setting high-risk, meaning an employer’s request to vaccinate may be deemed a reasonable step in accordance with the Health and Safety at Work Act 1974. The act requires employers to take all reasonable steps to reduce workplace risk, with the immunization of all employees potentially being seen as such. However, employers will need to carry out a full risk assessment and ensure that they balance the employee’s rights against the risks of non-vaccination. There may be other health and safety measures that could be put in place instead, for example employers could place these staff on less people-facing duties, or require them to wear PPE to minimise risks of transmission. Ultimately, there are other ways to deal with this and employers should not refuse an employee the right to work if they do not have the vaccine without considering this very carefully.

Employees could push back for various reasons, many of which are covered by the Equality Act 2010. Employers must take care when deciding their approach in relation to the vaccine to ensure employees are not discriminated against as this could result in potential claims.

If an employee holds a strong anti-vaccination position, this may amount to a protected philosophical belief under the Equality Act (provided they can show their belief is genuinely held and worthy of respect). Also, religious discrimination arguments could be made. One key concern amongst religious groups is that many vaccines contain animal products such as pig gelatine. This may also cause issues for employees with ethical vegan beliefs.

There may be medical grounds why employees are unable to have the vaccine, for example those with certain disabilities or severe allergies. The vaccine is also not recommended for those who are pregnant, breastfeeding or planning to get pregnant.

If an employer does take disciplinary action or dismiss an employee for failing to follow a reasonable instruction to vaccinate, they must ensure a fair process with each case being considered on its facts. Only an employee who unreasonably refuses to be vaccinated could be fairly dismissed.

If the employee deems the dismissal unfair or discriminatory,  they could then go to a court or tribunal to seek justice. A better outcome may be to discuss with the employee why the vaccine is recommended, provide sufficient impartial and factual information, deal with any concerns raised and try to get the employee to understand and receive the vaccine voluntarily.

Whilst understandable that many employers would like to get as many staff as possible vaccinated, there may be good reasons why an employee would object. Employers can certainly opt to encourage employees to take up the vaccine, although should not go as far as mandating it in most circumstances.

If you would like any further information on this topic, please get in touch with Holly Milne in the employment team at Cripps Pemberton Greenish.