As the COVID-19 vaccination process is now underway in the UK, employers may be considering how the eventual wider roll-out may affect their workforce and future plans.

Many employers, particularly in the Health and Social Care sector, may wish to encourage staff to be vaccinated, and may have good reason for requiring the whole workforce to be vaccinated. However, the government has not made the vaccination mandatory, and for this reason it will be difficult for employers to force their staff to get the vaccine.

Any employer looking to make vaccination mandatory amongst their workforce will need to be aware of the possible consequences when it comes to employment law, and the potential for unfair dismissal claims.

As this is an entirely new situation and it is clear that factors will vary on a case-by-case basis, here we highlight some of the key considerations.

Health and Safety and Human Rights

In accordance with the Health and Safety at Work Act 1974, employers are required to take reasonable steps to reduce risks in the workplace, and ensure that the working environment is safe.

Encouraging staff to get vaccinated would therefore be a sensible approach, and a practical addition to COVID-19 workplace risk assessments. However, employers should be wary of using the wider vaccine roll-out as an opportunity to remove other COVID-19 safety measures.

ACAS guidance, whilst stating that employees may not be forced to have the vaccine, also recommends that employers talk to their employees about the vaccine and its potential benefits. The government has not made any statutory provision for the vaccine to be mandatory, meaning employers cannot force staff to have the vaccine. Furthermore, a mandatory vaccine could be considered an invasion of an individual’s privacy, and consequently an infringement of Article 8 of the Human Rights Act 1998.

Reasonable Instruction

The common law duty of employees to obey lawful and reasonable orders remains an implied term under which an employer may fairly dismiss staff who fail to follow a reasonable instruction and it may be argued that requiring employees to be vaccinated could be considered a ‘reasonable instruction’.

This argument should be treated with extreme caution however, as whether an instruction is classed as reasonable will depend on the specific circumstances.

In health and social care for example, it is much more critical that everyone is vaccinated to prevent placing vulnerable people at risk and protecting lives and the spread of the virus. Whereas for office-based roles, employers will not have such strong grounds to justify mandatory vaccination as a “reasonable instruction”.

Discrimination risks

Employers should also be aware that they may be at risk of indirect discrimination against employees with protected characteristics if vaccinated and unvaccinated staff are treated differently.

This may be through refusing unvaccinated staff access to certain roles or workplace areas, or denying sick pay if they are off sick with COVID-19 symptoms.

This could occur through:

Age – With older workers likely to receive the vaccine first, as current vaccine roll-out is largely based on the age of individuals, any differences of treatment of employees could be indirectly age discriminatory.

Disability – As some individuals may be advised not to have the vaccine due to a medical condition, this is likely to be a disability under the Equality Act 2010 and therefore any refusal not to be vaccinated and consequent detrimental action from the employer may be indirect disability discrimination.

Pregnancy – Exceptions to any mandatory vaccination requirement would need to include pregnant women who have been advised not to have the vaccine.

Religion/belief – Under the Equality Act 2010 an employee in theory, may argue their anti-vaccination stance on the basis of a protected philosophical belief.  In order to do so, the employee needs to demonstrate that the belief is genuinely held, cogent and worthy of respect in a democratic society.  Vegans or employees claiming religious discrimination on the grounds that the vaccine contains animal-based ingredients may have a stronger argument.

Managing risks

Employers considering implementing a mandatory policy should be aware of the high level of risks involved, and the potential for unfair dismissal claims.  In the first instance, engaging with employees and working with them to allow their input into any policy would be wise.

Whilst employers in certain settings may have stronger grounds for requiring vaccination across the whole workforce, it is likely that in most circumstances, employees would have a strong unfair dismissal claim.

This is new territory where the law has not been tested. Whilst there are potential arguments on both sides, it is clear that the specific circumstances in each case will be key. It will be down to an employment tribunal to decide if any dismissal as a result of vaccine refusal is lawful or not.

If you would like any further guidance on this topic, please get in touch with Vivienne Tolley, HR Services Director.