COVID-19 Vaccinations – What do employers need to know?
Since the rollout of the Covid-19 vaccination began earlier this month, employers have started to become cautiously optimistic about the future. Organisations are hopeful that the workplace may be able to get back to “normal” (whatever that now looks like) at some point in the near future. However, the questions surrounding the rollout of the vaccine are complex and there are a number of important legal issues that employers need to be aware of.
Can an employer require its employees to have the vaccine?
Clearly, this is a very sensitive issue. The Health and Safety at Work Act 1974 requires employers to take reasonable steps to reduce workplace risks. Whilst this is likely to mean that employers can ask employees to receive the vaccine, it is unlikely to be reasonable for them to require employees to be vaccinated – particularly in the context of the Government saying that it will not make vaccination compulsory amongst the general public. Employers should also be live to the reputational risk of making vaccination mandatory, as well as the possible impact on recruitment and retention.
It would, however, be prudent for employers to encourage all employees to be vaccinated in order to protect themselves as well as the rest of the workforce.
Are there any discrimination risks if an employer requires an employee to be vaccinated?
Yes, there are a number of discrimination risks here. For example, a disability discrimination claim may arise where an employee is unable to receive the vaccine because of a health condition and/or an age discrimination claim may arise where the vaccine is not suitable or available for employees of a certain age. Any requirement to be vaccinated would need to allow exceptions in order to minimise these risks.
Some employees may object to vaccinations on moral or religious grounds. This stance could be protected under the Equality Act 2010 which includes “religion or belief” (including a philosophical belief) as a protected characteristic. Vegan or vegetarian employees, for example, may object if the vaccine has been tested on animals or if it includes any animal-derived ingredients. A general belief against vaccinations has not yet been tested by the Employment Tribunal. However, earlier this year, an Employment Tribunal found that ethical veganism was a “belief” capable of protection under the Equality Act 2010. Whilst employers should not assume that all employees with particular religions or beliefs will be anti-vaccination, they should be live to the issue and be aware of the potential for discrimination claims.
We would urge employers to get in touch if they are dealing with these types of discrimination issues.
Can an employer dismiss an employee who refuses to be vaccinated?
An employer may seek to introduce a contractual requirement that employees should receive the vaccine. Any such change would be subject to the usual rules around changing terms and conditions – and many employees are likely to object to it, leaving an employer to decide whether to impose the change unilaterally or whether to dismiss and re-engage on new terms. Both options carry significant risk. Even if there was a contractual requirement to receive the vaccine, this would not necessarily allow an employee to be fairly disciplined or dismissed if they were in breach, and an Employment Tribunal is likely to have sympathy with an employee who did not want to receive it.
Whilst it may in certain limited circumstances be possible to justify the dismissal of an employee who refuses to be vaccinated, this has not been tested in the courts, and currently would represent a high-risk approach for employers. An employer would need a compelling reason, but may feel that the nature of their organisation justifies it. Employers in certain sectors, such as the health and care sectors, are likely to feel it is more necessary than those in sectors whose employees do not come into contact with any vulnerable groups.
We would urge any employers who are thinking about dismissing employees for refusing to be vaccinated to take legal advice before doing so.
Can an employer exclude an employee who has not been vaccinated from the workplace?
An employer may consider doing this on health and safety grounds, however to do so could give rise to discrimination claims. For example, allegations of age discrimination could arise where a younger worker argues that he/she is unlikely to receive the vaccine until the last phase of immunisation and/or allegations of disability discrimination could arise where a worker with a disability argues that the vaccination is not suitable for him/her due to an underlying health issue.
It is also possible that breach of contract or unlawful deduction from wages claims might arise if an unvaccinated employee’s pay is affected because they are not permitted to attend work.
If you need help with employment issues arising from the rollout of Covid-19 vaccinations please get in touch with your usual Employment team contact or call 01733 887840.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org