With vaccination against COVID-19 underway, a recent survey has reported that around a third of UK citizens would be reluctant to receive it.  With employers understandably eager to have their employees vaccinated in hope of their workplace finally returning to some form of normality, what are the legal implications in the workplace?

Should employers be encouraging vaccination?

Given that the Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks, it would be fair to say that employers should at the very least be encouraging their employees to be vaccinated to protect themselves and everyone else in the workplace.

How will a COVID-19 vaccine affect employers’ risk assessments?

Employers will need to update their risk assessments to reflect a vaccine’s availability when it is rolled out more widely. Risk assessments may need to determine whether additional measures can be put in place if employees choose not to be vaccinated.

This will be more important  to some sectors such as healthcare where COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations and choosing not to have the vaccination would put patients at risk.

Can an employer make vaccination compulsory?

In short, probably not. Employers have a legal obligation to ensure that the workplace is safe for all employees. Arguably, that could include ensuring that staff are not placed at risk by working alongside colleagues who have not received the vaccine.

However, unlike Denmark and some US states, the UK Government has confirmed that it has no intention of making vaccination compulsory.

Can an employer dismiss an employee who refuses to be vaccinated?

If employers wish to justify a policy of mandatory employee vaccines, they should consider the basis for this – is it to protect colleagues and customers? Or is it necessary because the employee needs to travel in their role to countries which require proof of vaccination?

Some employers may make vaccination an occupational requirement to perform a certain role. If an employee refuses, there may be scope to argue that it was a contractual obligation for the employee to perform their role safely or, potentially, that they have refused a reasonable management instruction.

Businesses will have no legal right to force employees to receive it. It will be difficult for an employer to treat refusal as failure to follow   a “reasonable management request” and lead to disciplinary action

Discrimination risks?

Some employees may not agree to be vaccinated due to specific religious beliefs that are held by a minority of religious groups. The Equality Act (EqA) 2010 protects employees against discrimination on grounds of religion or belief. While a small number of religious groups disapprove of vaccinations, most religions do not disagree with vaccination in principle. However, as a result of other beliefs of those religions (eg, not eating or using animal-based products), followers could refuse a COVID-19 vaccination because of its ingredients (eg, pork gelatine).

But what about a philosophical objection to vaccination? In January 2020, an Employment Tribunal held that ethical veganism was a protected philosophical belief in a particular case, and some vegans hold concerns about vaccines due to the traces of animal protein which they often contain. Whether or not being an “anti-vaxxer” could amount to a philosophical belief that is protected from discrimination under the Equality Act 2010 has not yet been debated in the Employment Tribunals. It would need to meet the legal test:

  • be genuinely held;
  • be a belief, not an opinion or a viewpoint;
  • relate to a weighty and substantial aspect of human life;
  • attain a certain level of cogency, seriousness, cohesion and importance; and
  • be worthy of respect in a democratic society.

What if employees have medical reasons not to be vaccinated?

Some individuals may be reluctant to receive a vaccine due to concerns about other underlying health conditions. If these medical conditions amount to disabilities under the Equality Act then pressurising employees to receive the vaccine could lead to a claim that they were being treated unfavourably as a result, unless this was justified.

What does this mean for employers?

Vaccination policies could potentially be justified as a proportionate means of achieving a legitimate aim. Employers are likely to have legitimate aims relating to health and safety and maximising the number of employees who can attend work safely. Vaccination policies may be a proportionate way of achieving those aims, although this will depend on the way in which they are operated and the impact on individuals.

A policy which, for instance, allows employees to return to offices only if they have been vaccinated and leaves other workers working at home could well be justifiable. The legitimacy of employers’ aims and whether their policies are proportionate are questions to which the answer may vary over time. For example, once ‘herd immunity’ has been established, it will be harder to justify not making any exceptions for those who object.

11th December 2020

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