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Can an employee refuse the Covid-19 vaccination?

Published 20 September 2021

Can an employee refuse the Covid-19 vaccination?

As plans and objections about jabs for jobs intensify some employees will need further clarity on if they can refuse the vaccine.

At present there are no laws in the UK that require staff to be fully vaccinated if they work outside of the care sector.

Care home staff were given until 16 September to get their first vaccination or face the sack.

Where an employer wants all staff to be vaccinated it is a subtle  balance of employment statutory rights and employer health and safety obligations. Any such requirement should be discussed, staff consulted and personal concerns reasonably considered.

From 11 November, care home workers and anyone working in a care home in England must by law have been fully vaccinated, or they will not be allowed to continue in their role unless they are under the age of 18 or medically exempt.

A Walsall care home worker said she lost her job after refusing to have the jab because of her concerns about the safety of it [1]

Unison has called on the government to repeal ‘no jab, no job’ laws for care home staff because ‘coercing and bullying’ people can never be the right approach [2]

Currently only care home workers need to be fully vaccinated. The introduction of compulsory Covid and flu jabs for frontline NHS and care workers in England is being considered in a government consultation [3]

The disruption caused by the pandemic and subsequent ‘pingdemic’ does mean employers in other sectors are looking at the best ways to keep their businesses operational.

The vaccination is considered to be the best protection against Covid-19. For some employers encouraging or even forcing their workforce to get vaccinated is seen as the most practical way to avoid problems.

News has already emerged from around the world of steps employers are taking to make sure staff are vaccinated.

US President Joe Biden has told tens of millions of government workers to get jabbed or face the sack. [4] He has imposed stringent new vaccine rules on federal workers, large employers and health care staff in a sweeping attempt to contain the latest surge of Covid-19.

 France has suspended 3,000 health workers without pay for refusing the Covid vaccine [5]. Staff were reportedly set a deadline to have at least one dose before action was taken.

And in a move that will have implications for workers in England, two American law firms are demanding staff be fully-jabbed before returning to their London offices [6]

The idea of vaccinations being mandatory is controversial and unprecedented. For most employers an insistence all staff must be fully vaccinated will carry a legal risk.

There are a range of reasons, some valid and some not, why an employee may object to having the vaccination.

Forcing staff to have the Covid-19 jab could lead to claims for discrimination under the Equality Act. If the employer were to introduce a policy that contravenes one of the protected characteristics, for example religion or disability, an employee may be eligible to bring a claim in the employment tribunal.  

Any insistence on compulsory vaccination for staff, could also give rise to objections on the grounds of individual liberty and human rights.

Article 8 of the European Convention on Human Rights, protects people from being interfered with physically or psychologically and includes mandatory vaccinations [7]

There are also significant concerns about an employee potentially being able to bring a personal injury claim, if they are made to have the jab and it causes a medical issue, such as a serious injury or allergic reaction, would an employer be held liable?

An employer should talk to staff about being vaccinated, discuss exemptions and see what support it can offer.

Where an employer is considering disciplinary action related to getting the vaccine, including dismissal, then it is a good idea to get legal advice first.


References

[1] Dismissed after refusing jab, https://www.bbc.co.uk [internet] https://www.bbc.co.uk/news/uk-england-birmingham-58601564 [cited 20.9.21]

[2] ‘No jab, no job’ law for care homes, https://www.unison.org.uk [internet] https://www.unison.org.uk/news/2021/09/ministers-must-end-jab-compulsion-to-prevent-care-home-catastrophe/   [cited 20.9.21]

[3] NHS and frontline considered for compulsory jabs, https://www.bbc.co.uk [internet] https://www.bbc.co.uk/news/uk-58496967  [cited 20.9.21]

[4] Joe Biden Covid speech, https://editiom.cnn.com [internet] https://edition.cnn.com/2021/09/09/politics/joe-biden-covid-speech/index.html [Cited 20.9.21]

[5] Health workers suspended, https://www.theguardian.com [internet] https://www.theguardian.com/world/2021/sep/16/france-suspends-3000-unvaccinated-health-workers-without-pay-covid-jab [cited 20.9.21]

[6]   Jabbed before returning to work, https://www.ft.com [internet] https://www.ft.com/content/93352268-cbb5-401d-a8d7-fcbb36587e1d [cited 20.9.21]

[7] European convention on human rights. https://www.echr.coe.int [internet] https://www.echr.coe.int/Documents/Guide_Art_8_ENG.pdf [cited 20.9.21]

 

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