Vaccination dilemma for employers

It’s a controversial issue that has implications for employment for the foreseeable future.

Now as the vaccination process gathers pace with more of the working age population becoming vaccinated, businesses need to consider the legal implications of possibly insisting that employees have the jab.

The Government has not yet released any guidance on vaccination for employers. However, existing employment law gives some pointers on how to approach the issue.

As the Government has not legislated for the vaccine to be mandatory, on balance it would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people such as the social care sector.

ACAS guidance advises that employers should support staff in getting the vaccine and detail the benefits of the vaccine to employees, but cannot force it upon them.

However, there may be circumstances in the future where it might be necessary to make vaccination mandatory for someone to do their job, for example where they travel overseas and need to be vaccinated to do so.

A recent survey from YouGov suggests that one in five people are unlikely to get the vaccination. Reasons for this vary, from lack of confidence in the safety of the vaccination to being opposed to vaccinations in general.

Any available vaccine may also not be suitable for all and therefore there are a number of factors for employers to consider before rolling out a vaccination policy such as disability, pregnancy or religion.

Vaccination policies may therefore be indirectly discriminatory unless they can be justified. Various exceptions may therefore need to be carved out if an employer is looking to roll out a policy on vaccination.

Certain religious or moral objections to the vaccine may also be protected under the characteristic of religious or personal belief, under the Equality Act 2010.

There is certainly scope for a wide range of views on vaccination to fall within this protection, but not all views will qualify. For such claims to be successful there needs to be both a detriment and a causative connection to the religion or belief. 

Important questions that need to be considered:

Can an employee be dismissed for refusing vaccination?

If an employee has been continuously employed by the employer for two years or more, then the usual unfair dismissal test will apply and the tribunal will consider the reasonableness of the process and the decision. Failure to follow a reasonable instruction can lead to a fair dismissal; most likely as ‘dismissal for some other substantial reason’ (SOSR). If the potentially fair reason is misconduct, then the reasonableness of the employer’s instruction and whether the employee’s refusal was unreasonable will need to be considered. Unless vaccination is necessary for an employee to carry out their role, the requirement is unlikely to be considered reasonable and a tribunal would be slow to impose what is effectively a medical procedure on employees.

Whilst there is yet to be any case law, a tribunal is likely to have sympathy with an employee who did not want to get the COVID-19 vaccine and was dismissed or disciplined as a result.

Can an employer require an employee to disclose whether they have been vaccinated?

Requiring employees to disclose whether they have been vaccinated gives rise to both data protection and discrimination issues.

Employers would have to consider why they need evidence of vaccination and whether it is appropriate for the business.

How will a vaccine impact an employer’s COVID-19 risk assessment?

In view of the potential for individuals to refuse a vaccination, risk assessments may need to determine if additional measures can be put in place if an employee chooses not to be vaccinated.

What does this mean for employers?

Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated once this becomes a realistic possibility for all.

If an employer intends to mandate the vaccine as part of its approach to reducing risks, it will be open to discrimination claims and will need to consider whether there are reasonable alternatives.

This should be explored when carrying out the risk assessment.

For help and advice on matters relating to legal employment, contact Joanna Alexiou on joanna.alexiou@mackrell.com or at 0207 240 0521

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Joanna Alexiou

Joanna Alexiou

Associate Solicitor at Mackrell.Solicitors
Joanna joined the firm’s Employment Law team in February 2020 having previously worked at another prominent firm of solicitors in the heart of London. Joanna has worked with clients from the finance, technology, arts and culture, marketing, charity and food and drink sectors.