With the roll out of the Covid-19 vaccine well under way, it seems more and more likely that mass immunisation will be possible in 2021 but…
Can an employer force employees to be vaccinated?
This topic is incredibly sensitive and should be approached with extreme caution. If a business is considering imposing the Covid-19 vaccine on its employees, it will require careful communication with both employees and their representatives.
It must be noted that the government has not legislated, nor has it suggested that it plans to legislate, for the vaccine to be mandatory. This means it would be extremely risky for employers to insist on vaccination.
The ACAS guidance suggests that employers should support staff in getting the vaccine but cannot force them to be vaccinated. It does however recognise that it may be necessary to make vaccination mandatory where it is essential for an individual to do their job, for example if they are required to travel overseas, or if the individual is a carer and there is a real risk of them spreading the virus to vulnerable people.
Employers should listen to concerns if employees refuse the vaccine. If the reasons for refusing the vaccine are unreasonable, then employers may be able to take disciplinary action against the employee. The relevant factors when considering this are stated in the ACAS guidance to be:
- Whether there is a vaccine policy in place.
- Whether the vaccine is necessary to do the job.
- Whether an employee’s reason for not wanting the vaccine might be protected under the Equality Act 2010.
Whilst requiring vaccination may be lawful in very specific circumstances, it is not always going to be the best approach to take. Employers should consider the precedent it wishes to set, the risks of imposing a blanket policy and the impact on reputation and staff morale. Employers are still required to carry out risk assessments in their workplace and ensure they are Covid secure through imposing all the usual precautions.
If an employer seeks to rely upon an argument that compulsory vaccination is proportionate to keeping people safe, they will probably be undermined by both medical science and the alternatives available to the employer to ensure the same level of safety.
If an employer prevents an employee from coming to work because they have not had the vaccine, they risk being in breach of contract. Further, if the employee resigns in response to that breach or is dismissed as a result, the employer is highly exposed to a claim being brought against them for things such as disability discrimination, age discrimination, and religious or philosophical belief discrimination. There is also potential of personal injury claims if any employees had an adverse reaction to the vaccine. Whilst it is outside the scope of employment law, it is worth noting that if an employee was forced to get the vaccine and suffers a bad reaction because of it they may look to bring a claim for personal injury against their employer.
Introducing a contractual requirement for employees to get the vaccine would amount to a change in terms and conditions of employment and any contractual change needs to satisfy the usual factors. It is realistic to predict that many employees would object to such a requirement, either due to their concerns about the safety of the new vaccine (whether well-founded or not) or due to an objection to being forced into what is essentially a minor medical procedure by their employer. Without agreement, the employer would have to either unilaterally impose the change or terminate and offer re-engagement on new terms. Both options carry considerable risk, especially when the change is so controversial.
If an employer requires proof of vaccine from an employee, they are requesting disclosure of medical information which is classed as special category data. Therefore, if a business implements a mandatory vaccination policy, it will need to think extremely carefully about the information it uses and holds. Employers ought to give extensive thought to their position, should it be proven that the vaccines do not reduce or prevent transmission of the virus. If that is shown to be the case, it is highly unlikely an employer will be able to convince anyone that a mandatory vaccine is proportionate to safety. The starting point should always be to encourage vaccination, educate and support employees in accessing the vaccine, but not to make it an absolute requirement.
Get in touch today to speak to our Employment Solicitors or HR Consultants to find out how we can help you, or how this may affect your business and employees!