The flurry of activity surrounding the coronavirus vaccinations programme and the impact it has on returning to work post lockdown has left many business owners, managers and HR teams' heads spinning.
Our frequently asked questions guide provides you with insight about the employment law implications and an overview of what is and is not acceptable as we return to work.
As an employer can I require my staff to take the COVID-19 vaccine?
Vaccinations are not as legal requirement and therefore it would be very risky for any employer to make the COVID -19 vaccination a mandatory requirement in the workplace. In some industries, such as the social care sector, it could be argued that the requirement to take the vaccine is a ‘reasonable instruction’ because failure to do so could put vulnerable residents at significant risk. In other industries such as corporate employers this requirement would be not a ‘reasonable instruction’ as staff could work from home meaning that such an instruction would not be reasonable.
Any employer seeking to issue any such instruction, is reminded that they must not force anyone to take the vaccination but they should engage with their workers and include any associated trade unions. Each employer will have a different set of circumstances and as such, what might constitute a ‘reasonable instruction’ will differ so it will be worth seeking specific legal advice on this.
If my staff member refuses a reasonable instruction to take the vaccine, can I dismiss them?
Providing that the employer issues a ‘reasonable instruction’, any denial to follow that ‘reasonable instruction’ could lead to a fair dismissal on the grounds of some other substantial reason (SOSR). Whilst the process of dismissing an employee must be fair, it must also be on a case-by-case basis having understood the employee’s reasons behind not taking the vaccine. Before considering dismissal, it will be worth discussing other options such as a temporary change in role, however legal advice should be sought before proceeding to make any changes to contact or deciding to dismiss the employee as this could also be indirect discrimination for the reasons found below.
What are the other risks associated with requiring staff to take the vaccine?
Disability/Age discrimination:
Vaccinations may not be suitable for everyone’s health conditions or age. For example, those with suppressed immune systems may not be able to take the vaccine. Or those of a certain age have been advised against the vaccine. Requiring such employees to take the vaccination could give rise to a claim for disability or age discrimination.
Religion or belief discrimination:
Some employees may refuse to the take vaccination on the basis that it contains ingredients which would other compromise their religious/philosophical belief or practice.
Pregnancy or sex discrimination:
Whilst there is medical research to substantiate this, the vaccination is also said to be a risk to pregnant women or those breastfeeding or planning a pregnancy. Therefore treating someone less favorably because they choose not to take the vaccine for this purpose could give rise to a discrimination claim.
Privacy:
There may be some scope for employees to argue that the requirement to take the vaccine would be an invasion of their privacy in breach of Article 8 of the European Convention on Human Rights (otherwise known as the Human Rights Act 1998), particularly as there are other less invasive ways to minimize the risk of transmission of the disease (such as masks or sanitization of working area).
Can I ask for evidence of the vaccination from my staff?
Whilst the Government seem undecided about issuing a “vaccine passport”, it is important for the employer to establish why they would need such evidence and how this personal information would support the business, otherwise it is likely that such a request could give rise to data protection issues.
Will the vaccine help my business to meet its health and safety obligations as an employer?
Employers have an obligation under the UK health and safety laws, to take all reasonable steps in ensuring staffs’ safety in the course of employment. Whilst the vaccine will mean employers can start to reduce the measures taken to ensure the workplace is COVID-19 safe, it is still unclear whether these measures can be removed in their entirety, especially if some staff refuse to take the vaccine. It remains the employer’s obligation to ensure the health and safety of those vaccinated as well as those who choose not to.
It is also important to note, that currently the vaccine is only available to a section of the public and so introducing vaccination requirements at this stage, could give rise to claims for indirect age discriminate, as (mostly) younger members of the population will be not be entitled to the vaccine for some time yet.
If you have any other questions related to Coronavirus Vaccinations and the workplace, please do get in touch. Our team of expert employment solicitors are on-hand to support you as we transition out of lockdown and beyond.
