Mon 18 January, 2021
A question many employees are likely to ask in the coming weeks and months is: can my employer make me have the Covid vaccine?
The coronavirus (Covid-19) pandemic has been devastating and caused economic and social disruption worldwide.
At the time of writing the UK death toll was just under 85 thousand and tens of thousands of new cases are still being reported every day (1)
News that scientist have developed three effective vaccines to combat the virus is hailed as a major breakthrough in the battle against Covid-19. Millions of the most vulnerable have already received the jab (2)
Highly infectious South African and Brazilian variants of the virus have emerged, which are reported to be more infectious than the original one that started the pandemic.
The current vaccines were designed around earlier variants, but scientists are confident that they should still work against the new ones, although perhaps not quite as well.
The disruption caused by Covid has meant many employers could not, and still cannot, operate in the usual way.
Businesses have been forced to close, hundreds of thousands of jobs have been loss, millions of workers placed on furlough and employees forced to work from home.
The introduction of the vaccine has already seen employees enquiring what they can do if their employer tells them they have to have the jab.
It is reported that London-based Pimlico Plumbers plans to rewrite all of its workers' contracts to require them to be vaccinated against coronavirus (3)
Company chairman Charlie Mullins is said to have claimed it was "a no-brainer" that workers should get the jab.
If employees do not want to comply with the policy, it will be decided on a case-by-case basis whether they are kept on, he is reported as saying.
There currently is some uncertainty as to whether or not an employer can actually force an employee to have the vaccination.
It is an employer's duty, as far as reasonably practicable, to protect the health, safety and welfare of their employees
So, asking employees to ensure they get the vaccination can be considered reasonable,
But, if employees do not agree to a vaccine, employers are limited in what they can do, beyond encouraging take up.
Warning workers that refusing a vaccination can lead to disciplinary action is risky. It can create problems, as many employees are likely to feel strongly that it should be a personal decision.
Reasons for such a refusing to have the vaccine are likely to vary. It is reported that there more than five million 'anti-vax' followers in UK who are thought to distrust the Covid vaccine (4). Others may refuse because of religion or belief or a disability.
Taking any type of disciplinary action against a non-compliant employee can raise a number of legal issues, with a particular risk of complaints relating to discrimination.
Employers should be aware that employees may have a medical reason for not getting the vaccination.
There are no statutory provisions that could force individuals to become vaccinated. The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.
What if you work with vulnerable persons?
Under the Health and Safety at Work Act 1974, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they will have close contact with the clinically vulnerable. For example, it could be argued that requiring a care home employee to be vaccinated, and disciplining them if they refuse, is reasonable because of the high-risk nature of the work, ultimately justifying dismissal or disciplinary action.
However, it’s not quite that simple, and any employer mandating a vaccine would need to balance the proportionality of the interference with any article 8 rights, against the amount the risk is reduced by vaccination. Essentially, does the vaccine reduce transmission or does it simply suppress symptoms in a carrier? Are there any other less invasive steps that could be taken to reduce risk? It is this information that would inform an employment tribunal as to the reasonableness and proportionality of mandated vaccines in a high-risk workplace.
If the effect of the vaccine is to also suppress transmission over and above social distancing measures, it could then be possible at least in theory to justify disciplining an employee where they refuse, if their refusal is unreasonable, or relocating them to lower-risk roles, again provided this is proportionate. It is likely that such steps will be proportionate in very extreme circumstances where no other reasonable steps to protect vulnerable persons are available.
(1) Covid Death Toll in UK [Internet] www.bbc.co.uk [Cited 18.1.21] https://www.bbc.co.uk/news/uk-55653161
(2) Millions of the most vulnerable have already received the jab [Internet] www.gov. uk [Cited 18.1.21] https://www.gov.uk/government/publications/uk-covid-19-vaccines-delivery-plan/uk-covid-19-vaccines-delivery-plan
(3) based Pimlico Plumbers plans to rewrite all of its workers' contracts [Internet] www.bbc.co.uk [Cited 18.1.21] https://www.bbc.co.uk/news/business-55654229
(4) Refusing to have the vaccine [Internet] www.ITV.com [Cited 18.1.21] https://www.itv.com/news/2020-12-22/revealed-more-than-5-million-anti-vax-followers-in-uk-as-leaders-spread-distrust-about-covid-vaccine
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