Can employees be required to take the Coronavirus vaccine?
The Prime Minister stated that every adult will be offered vaccination by the end of July, which has left many people questioning whether employers can make vaccinations compulsory. Some employers will be very keen to do so, however, implementation is not a simple matter.
Currently, guidance published by Acas has suggested for employers to “support staff” in getting vaccinated without forcing them to. However, if the employer wishes to bring in a vaccine policy, they should get legal advice first to avoid issues such as discrimination.
Why are employers concerned with whether their employees are vaccinated?
Employers have a legal duty to protect the health and safety of their staff and third parties who come in contact with the employees at the firm.
The Health and Safety at Work Act 1974 states that employers must, “so far as is reasonably practicable”, protect the “health, safety, and welfare” of all their employees, as well as third parties on their premises.
The Management of Health and Safety at Work Regulations 1999 were put in place to reinforce the previously mentioned Act. They require employers to carry out risk assessments and make arrangements to develop a coherent overall risk prevention policy.
The Control of Substances to Health Regulations 2002 include the control of occupational exposure to “biological agents”, such as micro-organisms which may cause an infection like COVID-19.
Moreover, employers also have a common law duty to take reasonable care of employees’ health and safety. Failure to do so may give rise to a personal injury claim. Additionally, an employer may be subject to Employment Tribunal claims from employees who feel that the employer has not taken sufficient protective measures.
Cases when the employer may deem it necessary to require that staff are vaccinated
Depending on the circumstances, it may be within an employer’s rights to take action if employees will not get vaccinated when there are good reasons why they should. This will be most common in healthcare or care home settings and in some cases, dismissal could occur for refusing vaccination if doing so presents a threat to themselves, patients, or other employees.
For example, Barchester Healthcare, a care home operator, has instigated such a requirement to “deliver on its duty to protect…residents, patients, and staff.” Furthermore, Steve Powis, NHS England’s medical director has stated that staff have a “professional responsibility” to accept the vaccine, however, views on the subject are divided between health chiefs.
Employers may want to consider alternatives to mandatory vaccination. The government is encouraging employers to adopt regular workplace testing or regular health and safety assessments to ensure they are properly implementing COVID secure measures in line with current government advice.
Can employers discipline employees for refusing to be vaccinated?
Some people are unable to have the vaccine because they are pregnant, have medical reasons, or are under 18. Taking action against any employees in these groups for refusing the vaccine would be direct discrimination.
Several other protected groups are less likely to have the vaccine. This could be due to: disability, race, age, religion, or belief, and disciplining or dismissing people in these groups could give rise to a claim for indirect discrimination.
However, indirect discrimination can be justified if employers can show that there is a “legitimate aim” and the requirement is a “proportionate” way of fulfilling that aim. In most cases introducing a vaccine requirement to protect the health and safety of staff and third parties will satisfy the first part. However, it is more difficult to show that the action has been “proportionate”.
The Acas Guidance suggests that a refusal to be vaccinated may justify disciplinary action up to dismissal if: vaccination was required by the employer’s policy and necessary for an employee to do their job; the action was not discriminatory.
An employer must keep in mind that they could be exposed to an unfair dismissal claim if the employee has two or more years of service. They would then need to show that there was a fair reason for the dismissal and that this course of action was reasonable. It would be very risky to dismiss an employee who can prove they have a good reason to refuse vaccination.
On the other hand, employees who have less than two years’ service do not have the right to claim unfair dismissal, and those who are self-employed or hold zero-hour contracts might also be less protected from their employer’s decisions.
Can employers require employees to disclose their vaccination status?
Depending on what role vaccination status plays in the employer’s risk assessment: potentially. However, as this is classed as special category data, employers need to carry out a data protection impact assessment before requiring the information. It is reasonable to think that most workplaces will have legitimate reasons to collect this data as it is obligatory for employers to make their workplace Covid-safe.
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