Legal

Can employers force staff to have the Covid vaccine?

15 Dec 2020 By David Sheppard

Making the jab mandatory or pressurising employees to have it could lead to criminal implications, says David Sheppard

The law

There are no statutory provisions that could force individuals to become vaccinated. The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations. 

If any government of the UK were to insist on compulsory vaccination, it could feasibly give rise to objections on the grounds of individual liberty and human rights. This is owing to article 8 of the European Convention on Human Rights, which protects people from being interfered with physically or psychologically and includes mandatory vaccinations.

Can businesses force employees to vaccinate?

In short, no. In theory, if there is a thorough medical examinations clause in a contract of employment, it could be relied upon. However, this would still be fraught with risk, and freely given consent is required for any medical intervention. 

If employers were to try to force their employees to be vaccinated, not only could it give rise to human rights concerns, but there could also be criminal implications. Forcing anyone to receive a vaccine injection under duress, under UK law, could constitute an unlawful injury. A vaccination requires an individual’s informed and voluntary consent.

It may also be that someone’s anti-vaccination position could amount to a protected philosophical belief under the Equality Act 2010. If a fervent anti-vaxxer could establish that their belief was genuinely held and worthy of respect, then they may find success at a tribunal.

Religious discrimination arguments could also be made. There are several religious issues at stake when it comes to vaccinations, but the main one is the fact that many vaccines use pig gelatine, which could cause problems for several religious groups, as well as vegans – all of whom are protected under the Equality Act. 

Can employers indirectly compel employees to vaccinate?

Businesses could decide to take indirect measures to pressurise vaccination of their employees, such as refusing staff entry to certain parts of the workplace or certain roles, if they cannot demonstrate that they have been vaccinated. Similarly, employers may be tempted to issue disciplinary action if an employee repeatedly refuses to be vaccinated. Any such measures should be considered very carefully before being implemented. 

If an employee’s refusal to be vaccinated is down to a disability/protected religious/philosophical belief, and results in disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim, and claim constructive unfair dismissal if they resign in protest. A better course of action for organisations would be to help employees to make informed decisions regarding their vaccination by sharing impartial, factual information.

What if you work with vulnerable persons?

Under the Health and Safety at Work Act 1974, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they will have close contact with the clinically vulnerable. For example, it could be argued that requiring a care home employee to be vaccinated, and disciplining them if they refuse, is reasonable because of the high-risk nature of the work, ultimately justifying dismissal or disciplinary action. 

However, it’s not quite that simple, and any employer mandating a vaccine would need to balance the proportionality of the interference with any article 8 rights, against the amount the risk is reduced by vaccination. Essentially, does the vaccine reduce transmission or does it simply suppress symptoms in a carrier? Are there any other less invasive steps that could be taken to reduce risk? It is this information that would inform an employment tribunal as to the reasonableness and proportionality of mandated vaccines in a high-risk workplace. 

If the effect of the vaccine is to also suppress transmission over and above social distancing measures, it could then be possible at least in theory to justify disciplining an employee where they refuse, if their refusal is unreasonable, or relocating them to lower-risk roles, again provided this is proportionate. It is likely that such steps will be proportionate in very extreme circumstances where no other reasonable steps to protect vulnerable persons are available.  

David Sheppard is an employment lawyer at Capital Law

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