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Should employers ask their workforce to have the vaccine?

Written by Karen Holden on Wednesday, 17 March 2021. Posted in Wellbeing, Legal, People

The UK Covid Vaccination programme is well underway, with at least 15 million people in the UK having received one dose of a coronavirus vaccine already.

Should employers ask their workforce to have the vaccine?

The UK Covid Vaccination programme is well underway, with at least 15 million people in the UK having received one dose of a coronavirus vaccine already. The UK is on track to meet its pledge of offering a vaccine to everyone in the top four priority groups. After the remaining priority groups have been vaccinated it’s only a matter of time before it’s available to the wider population.

For businesses that require staff on company premises, this could be seen as a route to help things get back to ‘normal.’ But what if an employee doesn’t want to get vaccinated, could their choice potentially impact their livelihood? Could getting vaccinated even become a compulsory tick box for employment in the future?

The Public Health Act

In England and Wales, the Public Health (Control of Disease) Act 1984 gives the government the power to prevent, control and mitigate the spread of an infection. However, this act specifically prevents a person from being forced to undertake medical treatment, i.e. a vaccine. Therefore, to date there is no legal power to force the COVID-19 vaccine on the public and the government have confirmed that there are no current plans on making the vaccine mandatory. 

Can workplaces make the vaccine compulsory?

There may be specific workplace grounds to mandate a vaccine as a condition of employment with vaccines minister Nadhim Zahawi stating that it was 'up to businesses.’ However, employers must be careful in ensuring it is essential and not just part of COVID safe work arrangements. The bar for this is likely to be very high and limited to healthcare workers and those providing similar services. Although, recently we have seen bosses beginning to draft ‘no jab ,no job’ contracts to force staff to get the vaccine.

But as it stands at the moment, there is currently no real legal basis to have employees vaccinated. Therefore, it is advised that employers do not force this. Employer’s should try to be understanding and acknowledge that there are various different and complicated legitimate reasons why an employee may not wish to be vaccinated. An employer is opening themselves up to a whole host of litigation if they enforce vaccines and if they fire someone for refusing a vaccine, this may constitute as unfair dismissal.

Does workplace pressure to take the vaccine change liability? 

At present, this is currently unknown. However, it is likely that, as long as the vaccine is government recommended as best medical practice, then the liability would not fall on the employer. It would fall on the government and drug manufacturers instead. Although, this may differ depending on case by case scenarios i.e. if your employer has acted unreasonably in pressuring you into taking the vaccine.

Unless the government make the vaccine compulsory, employers would have to seek a right under common-law contract and have clauses that require the vaccine, therefore, offering legal consent. It will be interesting to see how as time goes on if these clauses can be challenged or upheld.  Over time, case law will be developed in this area with there likely to be challenges of human rights violations. 

Can you get treated differently for your vaccination choices? 

As an employer has a legal health and safety obligation to all their staff it may be possible for them to give extended ‘social interaction’ rights to those who have been vaccinated. They could even require those who are not vaccinated to undertake different roles or become home-based. Each situation will differ based on the individual factors such as occupation, health issues etc. It is something that must be carefully thought out from a legal standpoint and it is advised the perspective of all employees should be taken into consideration.

Depending on the circumstance, if an employee feels they have been treated less favourably they can make a grievance or discrimination claim ie. if they are refraining from taking the jab due to a disability or religious reasons, these could be possible grounds to file charges against. However, if the employer reasonably mandates a vaccination (i.e. hospital staff), then failure to comply with that reasonable request may result in dismissal. This may become the case in sectors where social distancing and working from home are not readily available. 

Stay up to date 

Although there are no rules currently in place in the UK allowing employers to force their staff to take the vaccine - this could potentially change. Ministers have been urging the Prime Minister to bring in vaccination certificates to help open entertainment venues. Also, with global travel likely to require this too with CEOs of international airlines already arguing the necessity, this could impact various jobs.

If the government make it impossible to fly or attend public events without having the vaccination, this will assist employers to encourage employees to opt for the vaccination in order to perform their roles. However, employers may initially address these issues indirectly through means such as denying any paid leave for those unvaccinated if they contract the virus or need to isolate or restricting and reducing benefits. 

It’s important to note that laws are constantly changing in anticipation of future needs. Therefore, it’s important to stay up to date and follow the government guidelines very closely.

Disclaimer: This is a high-level overview of the legal position surrounding vaccines and in no way constitutes legal advice. If you are unsure about any legal issues surrounding the pandemic, it is essential you seek legal advice.

About the Author

Karen Holden

Karen Holden

Karen Holden is an award-winning solicitor, media commentator and founder of A City Law Firm. She was one of 100 women invited into the Freedom of the City last year, an accolade previously bestowed upon Florence Nightingale and Margaret Thatcher. Karen specialises in advising businesses about scaling-up, starting up, investments, Brexit, Covid-19 and everything in between.

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