Government has made clear that they will not be forcing people to have the vaccine and we would recommend that most employers take a similar stance. Some employers may have more scope to insist that vaccinations are necessary; for example, those operating in high-risk health or social care environments. Even then, however, the employer must consider what benefit they believe vaccination can bring.
Employers in the health and social care sector may view vaccination as a means of protecting patients, residents and service users. These employers will be acutely aware of their duty to protect the health and safety of those in their care. However, if we do not know with any certainty whether vaccination will prevent transmission, it is difficult to say that an unvaccinated worker is any more risk to those around them than a vaccinated worker. If it does become clear that vaccination reduces the risk of transmission, it is more likely that a mandatory vaccination requirement will be viewed as reasonable.
CAN STAFF BE DISMISSED FOR REFUSING TO GET VACCINATED?
Any dismissal would have to be lawful within the unfair dismissal regime under the Employment Rights Act 1996.
It is, in theory, possible that an employer could consider that a request to be vaccinated is a reasonable management instruction, and refusal to comply could be a dismissible offence. Crucially, the instruction must indeed be reasonable in all the circumstances. The employer would need to consider what the benefit of vaccination is and why this is necessary. It would also need to consider whether the employee’s refusal was reasonable.
Where an employee has less than two years’ service, unfair dismissal will not be an issue. However, there may be discrimination issues to consider for all staff regardless of service length.
WHAT ARE THE DISCRIMINATION RISKS?
Some disabled people may be ineligible for certain types of the vaccine; it might take the younger workforce longer to get the vaccine than their older colleagues; pregnant women were initially advised against getting the vaccine, although that advice has changed for those with a particular vulnerability to coronavirus; and some employees might object for religious reasons, for example where the vaccine contains animal products.
There are additional considerations specifically in respect of anti-vaxxers, who have strong opposition to vaccination generally as opposed to those who are merely vaccine-hesitant in the context of coronavirus. In our view, it is unlikely that a tribunal would bestow protection for anti-vaxxers under the Equality Act 2010, which would mean that to subject them to detriment or dismissal would amount to discrimination. To benefit from protection, the belief would have to amount to a philosophical belief of similar status to religious belief.
CAN I INCLUDE VACCINATION AS A CONDITION OF EMPLOYMENT?
Probably. Generally, employers have much more flexibility in setting out requirements for new recruits than making contractual changes for existing employees. Employers might insist vaccination is a condition of employment like having the right to work in the UK but again this would be subject to any discrimination risks.
SHOULD EMPLOYERS BE ENCOURAGING VACCINATION?
Given the benefits of vaccination as one of the methods to bring the pandemic to an end more quickly than would otherwise be the case, employers may wish to encourage staff to get vaccinated. Providing information and advice about vaccination and its benefits is unlikely to pose any legal risk to an employer, provided they do so sensitively and in a non-discriminatory way.