Clearly employees cannot be physically forced to have the vaccine, so can they be disciplined or dismissed if they refuse?
What are the legal issues involved?
Is it reasonable for employers to instruct employees to have the vaccine?
If the employer is a care home or in the health sector, such an instruction may well be reasonable in order to protect the employee and those they come into contact with. However, it is unlikely to be reasonable if the employer is office-based and the work requires limited personal contact or where other protective measures such as social distancing can be more easily implemented.
Is it a breach of Human Rights to require a vaccination in order to work?
There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual’s right to privacy, particularly when there are other, less invasive, ways to minimise the risk of transmission in the workplace.
Can the employer discipline or dismiss an employee who refuses?
If the employee has a genuine medical or religious reason, for example:
• being allergic to ingredients in the vaccine;
• being pregnant;
• being medically unable to receive the vaccine;
• for reasons of religion or belief (for example, concerns that some vaccines may contain gelatine as a stabiliser);
then in those instances, the reason for refusal would be reasonable and disciplining or dismissing an employee could well give rise to successful claims for unfair dismissal and discrimination.
If an employee simply says they are “anti-vaccination” then it is worth remembering that the Tribunal has held that veganism is a belief protected by the equality laws and so it may be that being anti-vaccination could be held to be a philosophical belief equally worthy of protection. In which case, subjecting the employee to any detriment associated with it, for example disciplinary sanctions or dismissal may well also give rise to claims.
What about pregnant employees?
The vaccine is not currently recommended for those who are pregnant, breastfeeding or who plan to get pregnant very shortly. A blanket instruction could therefore lead to conversations that employees are not comfortable having, including disclosures of pregnancy much earlier than the employee would otherwise like. Not only will that be problematic for employee relations but such a blanket requirement for vaccination is also likely to be indirectly discriminatory.
What about the employer’s obligations towards its other workers?
An employer owes all of its workers (not just its employees) a duty to provide a safe system of work. If employers are employing or engaging staff who have not had the vaccine, it may well be argued that they are failing to meet this obligation. As a result, staff may justifiably refuse to attend a workplace that they believe to be unsafe, raising the potential for staff to refuse to come to work and argue that their refusal is justified on health and safety grounds.
Employers must document all health and safety concerns and carefully consider anything which affected employees could argue was detrimental (eg segregating employees who have not had the vaccine). Employers should also ensure that they record their justifications in writing.
The actions that need to be taken now……
* Identify issues and processes in the workplace that can be adapted to ensure the workplace is COVID secure.
• Identify those roles that can continue to be performed effectively from home, those that can continue to be safely performed with existing COVID secure arrangements in place and whether there are any roles that may reasonably justify an employee having to have a vaccination in order to work safely.
• Consider how to manage employees whose role requires them to be vaccinated but who refuse to do so. Cases will need to be reviewed on an individual basis.
• Involve the workforce in considering risk and identifying solutions.
• Provide clear information to employees on the vaccine programme which may help to encourage participation.
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