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Simran Lalli

Article written by Simran Lalli, Solicitor, Employment department

As the Government’s plan for the largest vaccination programme in British history continues, questions have been raised by some employers about whether they can insist that their staff are vaccinated. Simran Lalli explores the debate surrounding the COVID-19 vaccine and where an employer stands from a legal perspective.

The Government does not have the statutory powers to require individuals to undergo medical treatment, and therefore employers cannot rely upon the Government making the vaccination compulsory.

Can employers themselves require their employees to be vaccinated?

In short, an employer cannot compel employees to take the vaccine. Forcing a member of staff to take the vaccine may give rise to a breach of the European Convention on Human Rights, as well as possible claims for unlawful injury.

On the other hand, employers are obliged under health and safety laws to take reasonable steps to reduce any workplace risks. It therefore makes sense for employers to encourage their employees to be vaccinated to protect themselves and everyone in the workplace.

In some settings, an employer may be able to issue a reasonable management instruction to their employees to take the vaccine. This is likely to be the case in sectors such as healthcare and those where employees have close contact with the clinically vulnerable. Where a reasonable management instruction has not been followed, there may be circumstances where an employer would be justified in considering the dismissal of the employee.

Will employees have an employment claim if they are dismissed?

Unfair dismissal

If an employer dismisses an employee as a result of their refusal to take the vaccine (and the employee has the qualifying period of service of two years), they may bring a claim for unfair dismissal at the Employment Tribunal.

An employer should approach with caution any decision to dismiss an employee for failure to be vaccinated. To do this, an employer will need to ask themselves the following questions:

  • What is the employee’s reason for refusing the vaccine?
  • Has careful thought been given to whether there are alternatives to dismissal? This can include redeploying the employee to a role where the risk of contracting and spreading infection is significantly reduced.
  • Has a fair process been adopted in dismissing the employee?

Each case must be considered on its own facts. If an employer decides to proceed, the existing disciplinary procedures of the employer should be followed as long as they are fair.

Discrimination

While some employees might be hesitant to receive the vaccine due to concerns around side effects, some may decline the vaccine due to reasons relating to a protected characteristic under the Equality Act 2010. Employees have the right to not be discriminated against for reasons relating to a protected characteristic and special considerations should be given to employees within these groups. The protected characteristics which are likely to be asserted in respect of the vaccine are:

  • Disability
  • Sex and pregnancy
  • Religion or belief.

It is possible that employees with certain medical conditions will be advised against or choose not to take the vaccine. Such employees may be disabled for the purposes of the Equality Act, and any pressure to take the vaccine could lead to an employee bringing a claim for discrimination.

An employee with a recognised philosophical belief or religion may also refuse the vaccination because of such beliefs. For a belief to qualify for protection under the Equality Act, it must:

  • Be genuinely held
  • Be a belief, not an opinion or a viewpoint
  • Relate to a weighty and substantial aspect of human life
  • Attain a certain level of cogency, seriousness, cohesion and importance
  • Be worthy of respect in a democratic society.

Pressuring employees to take the vaccine in contravention of their beliefs could also be discriminatory and should be approached with care. New cases are likely to come before the courts in the future.

Requiring or encouraging an employee to take the vaccine is a sensitive and evolving topic which potentially raises a number of legal issues. There are many factors to consider and it is important to seek legal advice before taking any action against an employee which might involve any detriment to them, including dismissal. For more information, please email me or contact the Grant Saw employment department on 020 8858 6971.