Can employers force workers to take the COVID-19 vaccination?

Written by Brabners LLP

 

For many, the approved COVID-19 vaccines are the light at the end of what has been a very dark tunnel. But as the vaccination programme is rolled out, there has been discussion about whether the vaccine could become mandatory with the UK. If so, how would this sit with the genuine concerns some people have regarding the COVID-19 vaccine and vaccines more generally?

Can employers force workers to take the COVID-19 vaccination?

Currently, the Government has stated that there are no plans to make immunisation mandatory across England and Wales. Employers who are considering whether to make COVID-19 vaccinations compulsory for their employees need to be alert to the issues relating to such a decision.

Naturally, the vaccination programme will be a topic of conversation within businesses and employers are encouraged to recommend the COVID-19 vaccines and subsequently support staff in getting the vaccine for example by allowing them to attend their appointment within work time.

Implications of forcing vaccination on a workforce

There may be some circumstances where there is a fundamental business requirement for employees to be vaccinated, such as where employees are required to work overseas and a COVID-19 vaccine passport is required.

However, employers need to be alert to the importance of acting sensitively to avoid uncapped and damaging employment tribunal claims. Motivations to decline a vaccine may not always be obvious and we, therefore, encourage employers to take a case-by-case approach.

Some employees may refuse to be vaccinated based on specific grounds that are protected under the Equality Act 2010. For example:

  • Employees who have been advised or do not consider it safe to take the vaccine as a result of an underlying medical condition, which could amount to a disability
  • Pregnant employees or employees trying to get pregnant who have been advised not to take the vaccine. The NHS has suggested that further evidence is needed with respect to the safety of the vaccination for this group
  • Gelatine derived from pigs is often used in mass-produced vaccines – which could cause concern for some religious groups, vegetarians and vegans. The NHS has advised that the two approved vaccines do not contain any animal products, but this could change with future approved vaccines.
  • The scope of protected characteristics under the Equality Act is evolving to reflect the more progressive and diverse society we live in. For example, in 2020 the Employment Tribunal deemed ethical veganism worthy of protection as a ‘philosophical belief’ under the Equality Act. This could pave the way for employees arguing that their anti-vaccination beliefs amount to a protected philosophical belief under the Equality Act.

Employers who require their staff to be vaccinated may have a defence to claims of discrimination under the Equality Act 2010 if they can demonstrate that the vaccination requirement is a proportionate means of achieving a legitimate aim. However, the success of this defence will depend on how critical the vaccination of staff is to the operation of the business, rather than a mere preference by the employer. For example, it may be justifiable for certain employers in the healthcare sector to require their staff to be vaccinated because they will be in close proximity to patients meaning that the risk of transmission and the impact of an outbreak is high. It may be more tricky for an employer to demand that its staff be vaccinated where they work in a large office with space to social distance and where other health and safety measures, such as protective screens, are already in place.

Employers should also bear in mind that treating vaccinated individuals more favourably (such as choosing a vaccinated candidate for a role over a non-vaccinated candidate) could leave them exposed to complaints from non-vaccinated individuals, so employers should consider carefully the rationale for requiring staff to be vaccinated.

Health and safety considerations

During the pandemic, employers have been under great pressure to ensure they comply with their legal obligation to protect employees’ health and safety and to ensure workplaces are Covid-secure. Whilst the vaccination programme should act as a catalyst for people to return to the workplace, not all employees will intend to take the vaccine and therefore these health and safety risks are unlikely to disappear. It is therefore imperative that all businesses continue to review risk assessments and include provision for those employees who have and have not been vaccinated and to share these with employees.

 

This bulletin is for general guidance purposes only and should not be used for any other purpose.

 

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