‘No Jab, No Job?’ – can employers force employees to take up the COVID-19 vaccine?

24 February 2021

As COVID-19 vaccinations are rolled out through the NHS’ mass vaccination programme, employers are considering whether they can make it mandatory for employees to have the vaccination. Whilst employers have a duty of reasonable care towards the health and safety of their staff, currently this only extends to encouraging them to accept a vaccination in order to reduce the risk of COVID-19 transmission in the workplace. This is because in the UK, vaccinations are not (and it is not envisaged that they will become) mandatory, so there is currently no legal basis for forcing staff to have the vaccine.

Some employers may have contractual clauses in staff contracts of employment relating to medical testing and treatment which gives them the right to discipline an employee who refuses the vaccine; however, this is unlikely to be the scenario in which most employers find themselves. Therefore, employers are advised to encourage employees to take up the vaccine as and when they become eligible, using a positive approach instead of threatening them with disciplinary action.

What issues could arise if employees were forced to have the vaccine?

There is a risk that if employers make it mandatory for employees to get the vaccine, threatening them with disciplinary action if they refuse, that a strain could be put on employer-employee relations. There is a further risk that making vaccinations mandatory for staff could give rise to a number of direct and indirect discrimination claims on the grounds of disability, age, pregnancy/maternity and religion or belief.

For example, if a member of staff does not wish to take up the vaccine as they are pregnant, they may be able to assert that they have been discriminated against on the grounds of pregnancy/maternity if dismissed or disciplined. Furthermore, there is a possibility that the ‘anti-vax’ movement may be deemed a belief under the Equality Act 2010. As we saw with veganism, if an individual can demonstrate that they have a philosophical belief that is genuinely held, cohesive and worthy of respect in a democratic society, then such a belief may be deemed a protected characteristic.

Employers who force their employees to have the COVID-19 vaccine may put themselves at risk of a potential unfair or constructive unfair dismissal claim, if an employee is dismissed or sanctioned as a direct result of their refusal to take up the vaccine.

Employers could argue that an employee’s refusal to take up the vaccine gives them a fair reason for dismissal, the “some other substantial reason” (a SOSR dismissal) being the prevention of the spread of the virus in the workplace. However, employers would need to be very careful with this approach and each case would be assessed on its own facts and merits. Therefore, to determine whether a dismissal would be fair, a thorough disciplinary process would need to be undertaken and any alternatives considered, for example relocation away from the workforce

In any event, legal advice should be sought before taking any action that may include the dismissal of an employee who refuses to have the vaccination.

What could employer’s do?

Policies: Having a clear COVID-19 pandemic policy which includes specific detail around the vaccine will assist in avoiding any ambiguity of employer expectations. Having a policy in place will also enable you to have clear guidance at the point in which an employee does refuse to have a vaccine. As previously stated, employers should encourage employees to have the vaccine through positive reinforcement, and the Chartered Institute of Personnel Development (CIPD) also suggests that such a policy should take into account the legal aspects, data protection, health and safety duties and whether employees will be entitled to time off to have, and potentially recover from the vaccination.

Open and transparent communication: Employers should inform their employees of the benefits of immunisation, educate employees with impartial, factual information and outline any potential risks that could arise in the workplace if staff refuse to have the vaccine. By adopting a voluntary approach which engages employees, trust can be built, and employees will appreciate that they are part of the decision-making process.

Ensure Managers are equipped: If employees voice concerns about being vaccinated, employers should ensure that line managers are equipped to deal with such queries. Discussions should be held informally in the first instance with a trusted member of staff who is reassuring and can try to obtain their consent to take up the vaccine, without making them feel pressurised into doing so.

Employers should bear in mind that more staff are likely to take up the vaccine if they use open and clear two-way communication, and actively listen to any concerns employees may have.

Due to the ever-changing and complex nature of this topic, if as an employer you are in doubt as to whether you can impose such rules and restrictions on employees, then please do not hesitate to get in touch with our specialist employment team here.

This article was written by Redkite Solicitors’ Employment Law Legal Advisor, Tessa Charles. To find out more about Tessa visit her website profile here.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.