Covid-19: Vaccinations FAQs
With 2021 feeling suspiciously like 2020 and Lockdown 3.0 in full swing, it is nevertheless the case that this update comes at a time when there is some hope on the horizon. With three vaccines now approved for use in the UK, we can all hope to see an easing in the current restrictions which impact on us all in one way or another.
The roll out of vaccines has however, come with a whole new raft of questions for SME owners and HR managers, who now have to consider how the vaccine will impact operationally and we hope to be able to answer some of these for you below.
Can I demand that my employees have a Covid-19 vaccine?
In most circumstances, the answer to this question will be no. It sounds dramatic but any requirement in this regard could be classed as an infringement of an employee’s human rights and might even constitute a criminal assault. The government has not legislated for the vaccine to be mandatory and so there is always going to be a risk in any employer-imposed requirement for employees to have a vaccine.
Each case will however, turn on its own facts and where there is a risk of exposure to Covid-19 in the workplace, such as care homes and healthcare environments, it might be possible to make vaccination a requirement. Employers who wish to take this stance need to properly consider the reasons for doing so and demonstrate that they have carried out a full risk assessment balancing the benefits of vaccination against individual employee’s own human rights. Consideration will need to be given to alternative, less invasive measures to reduce the workplace risk before mandating a vaccination requirement. Measures such as social distancing, home working, wearing masks, washing hands should all be considered as an alternative.
What is the risk if I do require my employees to have a Covid-19 vaccine?
There are various legal risks in requiring employees to have a Covid-19 vaccine.
At worst, there are the risks of employees bringing criminal claims against you or claims on the basis of a breach of fundamental human rights. Cautious employers may also be concerned about the risk of employees having an adverse reaction to the vaccine. Employees who are compelled to obtain the vaccine and who suffer an adverse reaction, may attempt to bring personal injury proceedings.
If you are unable to show that you have a justifiable reason for insisting that your employees have the vaccine, employees with more than 2 years’ service could resign and claim constructive unfair dismissal.
Employees who refuse vaccines for religious reasons (some vaccines contain animal products) or health grounds (some vaccines are cultured in egg) may also be able to bring claims against you for unlawful discrimination.
Can I dismiss someone who refuses to have a vaccine?
The answer to this question will not be straightforward and advice should be sought if you are considering dismissal.
It might be possible to dismiss an employee on this basis, but you would need to show that you have reasonable grounds for insisting that they have the vaccine. You will need to demonstrate that you have considered the reasons why the employee is refusing and show that these reasons are not reasonable. You will need to show that you have considered alternative measures to vaccination before any decision to dismiss is made.
Employers who seek to introduce a contractual requirement for employees to obtain the vaccine does not, necessarily give an employer an immediate right to dismiss an employee who does not. We expect that a tribunal in an unfair dismissal or constructive dismissal claim would have sympathy with an employee who did not want to get the Covid-19 vaccine and was dismissed or disciplined as a result. A tribunal would be slow to find it fair to impose what is effectively a medical procedure on employees, although it is incredibly important to remember that we are in entirely unprecedented times so have no previously decided cases to seek guidance from.
What does ACAS say about enforced vaccines?
The ACAS guidance suggests that a refusal to be vaccinated could, in some situations, result in a disciplinary procedure. This would depend on whether vaccination was necessary for an employee to do their job. Employees who believe that their employer is being unreasonable in making vaccination mandatory are advised to try and resolve the problem informally or raise a grievance if informal resolution is not possible.
Can I stop an employee who refuses to be vaccinated from coming into work?
An employer may decide on health and safety grounds not to permit individuals who have not been vaccinated to attend the workplace but this could bring discrimination risks, so be wary. Younger workers, for example, are unlikely to receive the vaccine until the last phase of immunisation and we know that the vaccination is not suitable for all individuals who have some underlying health conditions and disabilities.
Employees who are not permitted to attend work, may also seek to bring breach of contract or unlawful deductions from wages claims if they are stopped from earning. Before stopping an employee from working at all, an employer should consider other alternatives, such as working from home or regular testing of employees who have not been vaccinated.
My employee is saying that they are refusing the vaccine because they are part of the “Anti-Vax” movement: what can I do?
It is possible that “anti-vax” beliefs might be captured by the Equality Act 2010. If this is the case then this group of individuals would have protection against discrimination although in order to establish the risk, an employer will need to take advice which takes into account all the facts of the case.
Will Howarths be preparing a Vaccination Policy?
Due to the legal and operational complexities, and the breadth of issues which would need to be considered in preparing a Vaccination Policy, we will not be releasing a policy of this nature at this time. Employers are free to issue their own policies but will need to have a proper consideration of all of the relevant issues.