Required immunity: Can I force employees to have the Covid-19 vaccine?

Authored by ARAG

It’s hard to imagine a word cloud for 2020 without the word “vaccine” in it, and 2021 is proving to be little different.

From daily updates on the development, testing and regulatory approval of the various vaccines, last year, bulletins now tell us how many people have received their first and second doses, here and abroad, and when each of us will be invited to step up for our own jabs.

One issue around which there is still some doubt, however, is the relationship between vaccination and employment.

As well as the important question of which professions should be prioritised for vaccination along with those most vulnerable to the virus, many people are asking whether employers can require employees to be vaccinated before returning to work, and potentially dismiss them, if they refuse.

We asked Stephen Moore, a partner and the head of employment at law firm Ashfords for his thoughts:

“Some employers may in the first instance avoid recruiting potential employees who have not had a vaccine. In respect to whether Employers could potentially resort to disciplinary action or dismiss employees who refuse to take the COVID-19 vaccine, this is more challenging. Those employers who adopt this approach could expose themselves to employment tribunal claims and would be risky.

The employee could bring a claim in the employment tribunal for unfair dismissal or discrimination, if the reason for not taking the vaccine is related to a protected characteristic under the Equality Act 2010.

It could be deemed to be a reasonable management instruction for an employer to require an employee to take the vaccine which justifies taking disciplinary action against employees who refuse. However, this would depend on the circumstances and the particular role, the job sector and responsibilities of the employee.

Any dismissal would have to be shown to be fair and employers should consider whether there are any alternatives to dismissal in the first instance. On the basis that it is not a legal requirement for individuals to take the COVID-19 vaccine, it may be difficult for employers to attempt to force employees to take the vaccine.

Employers should seek to have open conversations with employees who are unwilling to take the vaccine and attempt to reach some kind of understanding before taking any kind of disciplinary action.”

As is so often the case in legal matters, there is clearly no single, definitive answer. Not for the first time in the past twelve months, we find ourselves in largely unchartered employment law territory.

There are obviously numerous jobs for which a regular medical examination is required. This might be for the health and safety of customers, colleagues and the public at large, such as pilots, or for the employees themselves, who might work with hazardous materials or in particularly dangerous conditions, such as divers.

However, requiring all staff to have a simple, but nonetheless invasive medical procedure to administer a vaccine against a deadly virus that few of us had even heard of before 2020, is definitely a first.

In most cases, employees will be champing at the bit to get vaccinated, but there will inevitably be exceptions, and some might be quite reasonable. As is so often the case in employment law, it is exceptions like these that could result in tricky cases.

While there is no evidence of any greater risk, pregnant women are currently being advised not to have the vaccine unless their day-to-day exposure to the virus or a vulnerability due to an underlying health condition makes it more pressing for them to do so. Similarly, patients who have experienced an extreme reaction to a vaccine in the past, may have reason to defer their jabs.

Another potential issue could develop around vegans who decline the vaccine on ethical grounds. A preliminary hearing for an employment tribunal early in 2020 (Casamitjana Costa v League Against Cruel Sports) found that ethical veganism can constitute a philosophical belief and therefore a protected characteristic under the Equality Act 2010.

While the vaccines being administered in the UK do not contain any animal products, they have been tested on animals, which might lead some to reject them on ethical grounds. There would still be hurdles for an employee to overcome in order to prove that their refusal to be vaccinated resulted in discrimination, but it is a dispute that any sensible employer would do their best to avoid.

As is almost always the case, employers are likely to be better served by talking to reluctant employees and trying to find a mutually agreeable compromise than forcing them to be vaccinated at the point of a P45.

In the face of so much potential uncertainty, the advice to employers is familiar. Every situation is likely to be different and have its own particular circumstances, so it would be foolhardy to dismiss an employee or even threaten to do so for refusing to be vaccinated, without seeking proper legal advice first.