With the current roll out of the coronavirus vaccine, employers may be looking at whether they can insist on employees having the vaccine.
The government have previously stated that they will not be making the vaccine compulsory for all, but that they wish to do it by persuasion by highlighting the benefits the vaccine has to offer. The plan currently for the UK is for the clinically vulnerable to have had the vaccine by early spring 2021, and all adults to have been offered the opportunity to have the vaccine by September 2021.
The Public Health Act 1984 specifically states the public are not compelled to undergo mandatory medical treatment which includes vaccines.
ACAS has recently issued guidance on this topic, they advise employers should be supportive of their employees in getting the Covid-19 vaccine, but they cannot force or make it mandatory for employees to do.
If an employer tried to force employees to have the vaccine it could give rise to human rights concerns and potentially could be a criminal issue; as forcing someone to have an injection under UK law can be deemed an unlawful injury.
It is advisable for employers to communicate to their employees about the benefits of having the vaccine and inform them where to go to get the vaccine. They can tell employees that their preference would be that they all have the vaccine; however, this cannot be made into a clause forming part of a contract of employment.
Any employees who do not wish to be vaccinated, should be under no pressure to do so. Employers are encouraged to listen to the concerns the employees may have and keep all discussions confidential.
The reasons for not wanting the vaccine could be for a variety of reasons such as health concerns, religious views, wishing to start a family and having concerns over fertility, allergies or any long term affects the vaccine may have. Some employees could be protected under the Equality Act 2010.
Employers should encourage their employees who have concerns to talk to their GP about any concerns that they may have.
Some specific employers may decide that it is necessary for some employees to be vaccinated. This should only be the case if getting the vaccine is required for someone to do their job. For example, if staff travel to other countries for work and need vaccinations to be allowed to travel, or if they are in close contact with vulnerable people, e.g. care workers.
If an employer decides it’s necessary, they should agree it with staff or the workplace’s recognised trade union. The agreement should be put in writing, for example in a workplace policy.
Disciplinary action (where the vaccine is required to undertake a specific job)
If an employer believes an employee’s reason for refusing the vaccine is unreasonable, this could potentially result in a disciplinary action. This will depend on if it’s the workplace’s policy to be vaccinated and necessary for someone to do their job.
Such measures though should be carefully considered before being implemented. If an employee’s reasons are due to a protected characteristic they maybe be able to make a claim of discrimination. If the employee was to resign because of this, they may also be able to claim constructive dismissal. An employer must consider if someone’s reason for not wanting the vaccine could be protected from discrimination by the Equality Act 2010.
Under the Health & Safety at Work Act 1974, employers are required to ensure a safe working environment and therefore it could be argued; requiring a care home worker to have the vaccine is reasonable and that if they refuse they could face disciplinary action which could be seen as fair because of the high-risk nature of the job.
What can employees do
If an employee believes that their employer is being unreasonable because they have decided that it is necessary for them to have the Covid-19 vaccine then they must try and resolve the issue informally by talking to their line manager, a member of the HR Department or the Health and Safety representative, (or trade union representative if they are a member).
If the issues cannot be resolved informally then a grievance can be raised in line with the company grievance procedure.