With the COVID-19 vaccine rollout well underway, we look at whether an employer can insist on their employees being vaccinated when it is offered to them.
There are many things to consider with this one. Firstly, the Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks, and COVID-19 is a reportable disease under RIDDOR. Some might argue that this overriding responsibility is justification enough for insisting that employees should be vaccinated in order to protect themselves and the wider workforce. However, the Public Health (Control of Disease) Act 1984 states members of the public should not be compelled to undergo any medical treatment, including vaccinations.
When we look at it from the perspective of employment law, the fact that the Government have not made the vaccination compulsory means that it is not unlawful for employees to choose not to have it. The current rollout programme is only concentrating on those aged 50+ and those who are clinically vulnerable, so it is not yet clear whether it will be offered to the entire population and, at the time of writing, it is not available privately in the UK. Those coming to work in the UK from overseas may not have been able to access a vaccine programme, so we have to consider whether it is fair to make a job offer conditional upon being vaccinated if the prospective employee is not yet registered with a doctor in the UK.
For some people with certain underlying medical conditions, it may be deemed too risky for them to have the vaccination, or they may be allergic to one of the components. Others may object on religious grounds. It could, therefore, leave employers open to discrimination claims if it is forced, and a dismissal on grounds of refusal could potentially be unfair. Consider also the potential for exposure to an insurance claim if an employee has an allergic reaction to a forced vaccine.
It may be possible for an employer to justify that this is a ‘proportionate means of achieving a legitimate aim’ but there may need to be exceptions made on health or religious grounds. Given that we are potentially many months away from having even the priority groups vaccinated in the UK, it is likely to be at least a couple of years before we start to see this tested in the courts.
Then we have to consider human rights. Some may object to the vaccine because they have an anti-vaccine stance in general. For others, it may be genuine reluctance to have the COVID-19 vaccine because of a perception that the development of it was rushed and that we have not yet had sufficient time to monitor things like adverse reactions and long-term side effects. They may also just be needle-phobic.
There may be some environments where the need to provide a safe workspace is so overwhelmingly strong that employers feel that the consequences of not making vaccination compulsory are greater than the risks of an unfair dismissal or discrimination claim. For example, in a medical or care setting where there is a need to protect vulnerable patients or service users and where the vaccine is being made available to all staff.
Until such time as the position becomes clearer, consider having a policy which encourages vaccination but does not make it a contractual requirement. Policies should promote the benefits of having a safe workplace for all – including the most vulnerable, but which allows for those with legitimate needs to opt out. Provide as much information as possible on the vaccine – from reliable sources like the NHS and Gov.UK – and consider alternative options for those who are reluctant to commit just yet, like remote working.
Ensure that line managers have had the necessary training to enable them to deal with this in a sensitive and empathetic way and that they understand the concerns that employees may have.
As part of a vaccination policy, also consider the wider picture and whether as an organisation it might be possible to offer support for those who want to volunteer to be part of the vaccine rollout programme. Vaccination centres need large numbers of volunteers to act as marshals or to provide support or admin roles. As an employer, providing this time off helps to reinforce support for the vaccination programme.
If you do feel that you have objective justification for making the vaccine a contractual requirement, we can help you to assess your risks and update your contracts to reflect this, or if you would like assistance in drafting a vaccination policy, give us a call.
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