Employers are facing a surprising number of difficult and untested employment law issues as the UK rolls out its Covid-19 vaccination programme. Many are asking if vaccination can be made compulsory for employees. There are also questions about alternatives to a mandatory requirement, time off for vaccine appointments, and how vaccine objectors should be dealt with as well as data privacy concerns and other issues.
The Government has been rolling out vaccinations to all adults in the UK and expects all adults to have been offered the first dose by 19 July.
Will vaccination be mandatory for workers in the care sector?
Following consultation in April 2021, the Government has announced that from October, vaccination will be compulsory for all workers in English care homes regulated by the Care Quality Commission.
This will be enshrined in legislation, meaning that care home employers will be able to rely on a legislative basis for dismissing employees who refuse the vaccine unless they are medically exempt. Together with this, there will be further consultations regarding mandatory vaccination for NHS workers and domiciliary carers.
The Government has also released a vaccine toolkit to assist employers to run internal awareness campaigns that are aimed at providing employees with reliable and accurate information about the COVID-19 vaccine.
What about vaccination and pregnancy?
The Joint Committee on Vaccination and Immunisation (JCVI) issued new advice for pregnant women on 16 April, advising that vaccination is appropriate and recommended. Previously, vaccination was only recommended in pregnancy for women at a high risk of catching the virus or due to a pre-existing medical condition.
Should vaccination be mandatory for all employees?
ACAS has released guidance on getting the vaccination for work, with advice for both employers and employees. The Chartered Institute of Personnel and Development (CIPD) has also produced a useful guide for employers.
Mandating vaccination for employees has never been tested in UK law. It may be possible for some employers to require the vaccine for all their existing employees. This is likely to be a minority of cases at the moment, but the picture may change in the future.
What should employers consider before proposing mandatory vaccination for their employees?
Employers would need to ensure that they have a fair reason for dismissing employees who refuse vaccination but have more than two years of service.
Although customer confidence could be improved if all staff are vaccinated, it’s unclear if this alone would be enough to establish fair dismissals. Employers may, however, be able to rely on wider reasons about the role expected to be played by the vaccine in protecting against infection and transmission and achieving herd immunity. This is currently an untested area.
If an employer can show that having a vaccine is the most reasonably practicable way of mitigating the risk of Covid-19, having carried out a risk assessment. It could in theory mandate vaccination as a health and safety requirement, to protect both employees and others around them.
Employees who refuse the vaccine could potentially then be dismissed for a health and safety breach. This is most likely to apply in healthcare or other settings where Covid-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR).
Vaccines may also be needed for entry to some overseas locations. If the employee’s role involves travel to those locations, then the vaccine is likely to be a necessary job requirement and the employer is likely to have a fair reason for dismissing any such employee who refuses the vaccine.
Even if the vaccine cannot be said to be a travel or health and safety necessity in the particular workplace, some employers may also be able to establish that having a compulsory vaccination policy is nonetheless reasonable in the circumstances of their business or for certain employees.
What about exemptions for medical reasons or philosophical beliefs?
Employers will need to accept that some employees have the right to refuse vaccination for medical reasons or on the grounds of philosophical belief. Not doing so could lead to discrimination claims from employees with protected characteristics or potentially make it more difficult for an employer to justify the dismissal of an employee with more than two years of service.
There may also be other discrimination risks. An example of this would be mandating the vaccine before all adults have been offered the opportunity to be vaccinated. This would potentially discriminate against younger employees.
Where the risk of discrimination is present, employers would need to be able to justify their policy by demonstrating that they have a legitimate aim, such as health and safety, and mandating the vaccine was a proportionate means of achieving this.
Insisting on mandatory vaccination for employees is not as simple as it first appears and employers would be well advised to seek reliable legal advice before pursuing such a policy. Feel free to contact us if you have any questions or need any advice about a proposed vaccination policy in your place of work.
John McConkey has over 8 years of experience in employment law. John also has extensive experience of employment disputes and has acted for many individuals and employers. John is a registered member of The Law Society and The Employment Lawyers Association (ELA UK). To contact John, visit the Contact Us page. For media enquiries: firstname.lastname@example.org