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Can I force my employees to have the coronavirus vaccine?

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As we enter another national lockdown at the beginning of a New Year, the glimmer of hope that many people, including our Prime Minister, are clinging to is the roll-out of the Covid-19 vaccination.  However, many employers may also be wondering how the vaccine affects their health and safety responsibilities and whether they can force employees to be vaccinated. Our Employment Law team examines the rights of employees regarding vaccinations and outlines options available to employers.

The law regarding the Covid-19 vaccine

As an employer, you cannot force your employees to get the vaccine. Even if there was a relevant clause in the contract of employment, your employees must still give their express consent in order to be vaccinated. The Government have confirmed that the Covid-19 vaccine will not be made mandatory and so it will be a personal choice for individuals.

Health and Safety regarding vaccinations

The Health and Safety at Work Act 1974 places a duty on employers to protect “the health, safety and welfare” of all employees and to take reasonable steps to reduce risks. You may therefore be able to make a reasonable management request that employees be vaccinated as a way to protect workplace health and safety. Whether the request is “reasonable” will depend on the surrounding circumstances including:

  • the nature of the job;
  • the workplace environment;
  • the availability of other safety measures.

A request to be vaccinated is very likely to be reasonable where employees are at a high risk of being exposed to the virus, such as carers in a care home. Requiring vaccination is less likely to be reasonable where the risk of exposure is lower, such as an employee who works from home.

How do I act if an employee refuses to have the Covid-19 vaccine?

The Health and Safety at Work Act also places a duty on employees to co-operate with their employers in meeting their health and safety obligations. Therefore, an employee who unreasonably refuses to comply with a reasonable management request may be subject to disciplinary action up to and including dismissal. Whether a refusal is unreasonable will depend on the particular circumstances but you should be extremely cautious where the refusal is related to a protected characteristic under the Equality Act 2010.  Such employees may file a discrimination claim, or resign and claim constructive unfair dismissal.

Reasons an employee may give for refusing to be vaccinated that relate to protected characteristics include:

  • the employee has a medical condition that amounts to a disability;
  • the employee is pregnant or trying to become pregnant;
  • the employee’s religious beliefs prohibit vaccination in principle or because they contain certain ingredients (e.g. pig gelatine).

Employees may also refuse to be vaccinated due to certain philosophical beliefs.  Vegans may object to the vaccine because it contains animal products and ethical vegans could argue that their belief is protected under the Equality Act.  An employee with “anti-vaxxer” views may also have a protected belief if they can show their beliefs are genuinely held, cohesive, and worthy of respect in a democratic society.

Where an employee’s refusal to get the vaccine is related to a protected characteristic, you should consider whether any alternative measures could be used to meet your health and safety obligations.  Alternative measures may include working from home arrangements or providing PPE. If you do subject the employee to disciplinary action, you must be able to show that your action was objectively justified and why alternative health and safety measures were not appropriate.

What should employers do now to prepare for the vaccine roll-out?

There may be some things you can do as an employer to influence employees to receive the vaccine willingly. You should explain to your employees how the vaccine is important to workplace health and safety and encourage them to receive the vaccine when it becomes available. You may want to consult with trade unions, health and safety representatives and individual employees where possible in order to understand any misgivings employees may have about the vaccine. Misinformation about the vaccine has been a source of anxiety and mistrust for many people and you can help counter misinformation about the vaccine by having discussions with employees about their fears and sharing information from neutral, credible sources.

You should also prepare for the possibility that some employees may refuse to be vaccinated. You may want to conduct a risk assessment of your workplace and consider whether employees in certain roles are at a higher risk than others.  Contemplate any possible adjustments you could make to accommodate an employee who refuses to be vaccinated, or whether they could be moved to a lower-risk position in the business. 

This could be a complicated area of Employment Law for some employers, particularly if you do encounter employees refusing to be vaccinated.  It is important that you handle this situation with care and take appropriate action to avoid a potential claim against you, or any comments that could lead to reputational damage for your business.  To discuss your concerns and the possible steps forward, you can contact our team on 023 8071 7717 or email employment@warnergoodman.co.uk.  

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk.  You may also be interested in our latest articles on the topic of the Covid-19 vaccine:

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.