15 February 2021

COVID-19 vaccines: employment law considerations

The COVID-19 vaccination programme is well underway and with reports suggesting that all adults will be offered a vaccine by the end of May, employers will likely be considering the implications of this for their staff. This article considers some of the key issues.

Can employers insist that employees receive a vaccine?

This will depend on the industry and the employee’s role. Generally, employees must follow the ‘reasonable instructions’ of their employer and, in certain circumstances, insisting that an employee takes a vaccine could be reasonable. For example, it would, arguably, be ‘reasonable’ for a healthcare company to require their employees to be vaccinated in order to protect vulnerable patients, especially if vaccines are found to decrease transmission.

For most employers, however, demonstrating this will be tricky, especially in circumstances where their employees have been able to work from home successfully for the last year. Even general health and safety laws, which require employers to create a safe working space for their staff, do not require employers to insist that their staff are vaccinated.

If an employer has grounds to insist that an employee takes a vaccine and he/she refuses can they be dismissed?

Potentially, yes. It will always be fact specific and the employer would need to act reasonably (and follow a fair procedure), but technically, an employee’s failure to follow a reasonable instruction could be a dismissible offence. The employer would first need to think about reasonable alternatives – for example, moving the employee to a different role where he/she poses less of a risk.

If an employer is unable to demonstrate that requiring employees to take a vaccine is reasonable, any dismissal will likely be unfair. In these circumstances, it is normally best for the employer to encourage employees to take the vaccine and stress its importance, rather than requiring them to take it.

Are there any discrimination issues to consider?

Yes. Whether an employer looks to discipline or dismiss an employee for not following a reasonable instruction to take the vaccine and/or treats an employee who refuses to take it unfavourably, employers must keep in mind that there is a raft of genuine and reasonable reasons why staff may not wish or be able to be vaccinated such as disability, faith, religion and belief. These could give rise to potential discrimination claims.

If, for example, an employee refused to take a vaccine due to an underlying health condition, subsequently contracted COVID-19 and their employer refused to pay them company sick pay as a result, such action by the employer could amount to disability discrimination giving rise to potential claims under the Equality Act 2010 (the “Equality Act”) and constructive dismissal.

How about those who have concerns about the vaccine?

One interesting question is whether the 'anti-vax' movement will attract protection under the Equality Act. 'Belief' for the purposes of the Equality Act means a "philosophical belief that is genuinely held, that is cogent, serious and applies to an important aspect of human life or behaviour". Whether such belief is protected is likely to depend on the individual circumstances – but it is theoretically possible. As such, requiring an anti-vaxxer to take a vaccine could amount to discrimination.

Other considerations

  • Clear communication and engagement with staff are always important, especially where employers insist that employees take a vaccine.
  • If an employer keeps a record of its employees’ vaccinations, it should remember its data protection obligations. Such record-keeping would amount to processing “sensitive” personal data, which requires more protection.

This is an evolving area of law and as such we do not yet have all the answers. The Daily Telegraph recently reported that City law firms have urged UK government ministers to provide clarity on the law around requiring staff to receive vaccines before returning to work and hopefully further guidance will be forthcoming.

If you would like further information on this topic please contact Joe Beeston, Senior Employment Associate in our Employment team.

Disclaimer

The current global crisis is evolving, and the rules and guidance for individuals, companies and other entities to manage its implications are subject to change. Notes such as this may be out of date almost as soon as they are published. If you have any questions prompted by this article or on any other matter relevant to you, please get in touch with your usual contact at Forsters.


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