Employment law and the Covid vaccine: Where do I stand?
The long-awaited news that the COVID-19 vaccine has been approved in the UK provides a glimmer of hope in the return to normality.
This breaking news perhaps brings with it as many new questions and challenges as it resolves. At the time of writing there is no indication from the UK government whether the vaccination will be compulsory. Of particular concern for employers will be striking the balance of workplace safety and personal freedoms.
Employers faced with an ethical dilemma
At present, there is no UK national legislation that deals with this issue. In the absence of this, employers are faced with an ethical dilemma, not least of all because of the wide range of views on the vaccine itself. Whilst these considerations may not be legal principles in a strict sense, it is important to note that employment law is often rooted in determining the reasonableness and fairness of an employer’s action.
There could be workplace specific arguments to request an employee to get the vaccine, such as health and safety grounds. Risks assessments in the workplace will help justify why there is a need. However, employers should consider alternatives to mandating the vaccine, such as home working (if possible) and continued social distancing measures. In circumstances where such measures are not appropriate, compulsory vaccination could be a reasonable requirement.
Employers should be careful to recognise reasons for vaccine refusal
However, there are a number of reasons why an individual may not be able to or may refuse to be vaccinated. Employers should be careful to recognise the reason for refusal as, if the reason is related to one of the protected characteristics under the Equality Act 2010 they may risk a potential discrimination claim. For example, an individual could argue that they refused to receive the vaccine due to religious reasons or that they have a disability that effects their ability to get vaccinated.
There is also the possibility of privacy issues as it is likely to trigger human rights concerns.
Any disciplinary actions borne out of an individual’s refusal to be vaccinated would be dependant on the reasonableness of the requirement to be vaccinated. To demonstrate this, an employer will need to establish why it is necessary and explore whether there are other means of implementing a safe system of work. It will then be necessary to ensure that the refusal is not rooted in one of the protected characteristics of the Equality Act 2010. To lawfully impose any disciplinary sanction, the employer will need to ensure that it is fair and reasonable in all the circumstances.
These are early days, and the position may change. In the absence of guidance or legislation, it is difficult to foresee how an employer could reasonably justify disciplining an individual for refusing vaccination without inherent risk. Consent and voluntary participation are vital and practical solutions should be explored.