As a return to the workplace draws nearer, and an increasing number of employees become eligible for the COVID-19 vaccine, many businesses are considering whether they can require employees to be vaccinated by making this a condition of their employment.
Currently, vaccination against COVID-19 is not compulsory and ultimately it is up to employers to consider the ethics and feasibility of mandatory vaccination policies in their workplace.
However, compelling an employee to be vaccinated raises a number of complex legal issues and employers will need to tread carefully before making such a decision.
Health and Safety Issues
Employers have a legal obligation to protect the health and safety of their staff, provide a safe working environment and take all reasonable steps to reduce workplace risks.
Whether a compulsory vaccination policy is considered ‘reasonable’, will depend on the circumstances of the individual employee, the employer’s business and the sector they operate in. For example, requiring a frontline healthcare worker to have the vaccine is likely to be considered more reasonable than requiring a remote office worker to do so.
Encouraging uptake of the vaccination amongst employees, undertaking regular risk assessments and ensuring the workplace is COVID-secure in line with government guidelines are all reasonable steps to take to reduce workplace risks.
Failure of an employee to follow an employer’s reasonable and lawful instructions is generally grounds for disciplinary action and a potentially fair reason for dismissal.
If an employer asks an employee to take the vaccine, and the employee refuses, employers must carefully consider the grounds for refusal on a case-by-case basis before taking action.
Introducing disciplinary measures against employees who refuse to take the vaccine is a high-risk approach which will undoubtedly leave employers open to claims for breach of contract, unfair dismissal, constructive dismissal and discrimination claims.
Amending Employment Contracts
Employers might consider amending the employment contracts of existing employees to introduce an express condition requiring the vaccine to be taken. Making such a significant change to an employee’s contract without their consent is likely to give rise to a breach of contract entitling the employee to resign and claim constructive unfair dismissal.
Introducing such a condition into contracts for new employees is less risky, however, employers will still be at risk of discrimination claims from job applicants and new employees.
Compelling employees or job applicants to take the vaccine or disciplining or dismissing employees for refusing to take the vaccine is likely to give rise to claims for discrimination.
Some individuals may have specific reasons for not wanting the vaccine or not being able to take it, which gives them protection from certain forms of discrimination as follows:
- The current vaccination programme is based on age, so a requirement to have a vaccine currently indirectly discriminates against younger employees on the basis that they will be the last people to have the vaccine and may give rise to age discrimination
- If an employee is unable to take the vaccine for medical reasons, a requirement to take the vaccine may amount to disability discrimination
- Some employees hold religious or philosophical beliefs which may justify their refusal to take the vaccine and give them protection from discrimination on the grounds of religion or belief
- Pregnant employees or women planning a pregnancy have been advised not to have the vaccine therefore a requirement to do so may amount to sex discrimination
We would advise employers to take a cautious approach to adopting a ‘no jab, no job’ policy and instead to consult with employees and encourage them to take the vaccine through education and awareness rather than enforcing such a requirement across the workforce.
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