Can an employer require employees to be vaccinated?
- AuthorReggie Lloyd
From 11 November 2021, regulated care homes will be able to legally require workers to be vaccinated, although there is a suggestion that that legislation is unlawful. The question is whether other industries can require their employees to be vaccinated.
ACAS advise employers to encourage and support the staff to get vaccinated by offering paid time off. Initially the ACAS guidance suggested that employers may need to make vaccination mandatory to do their job, such as travelling overseas, this wording was removed in February 2021.
The Equality and Human Rights Commission (“EHRC”) indicates that mandatory vaccination policies might be discriminatory.
The risk if employers decide that they require their employees to be vaccinated is that requiring an employee to be vaccinated without their agreement could amount to a breach of contract and entitle the employee to resign and claim constructive dismissal.
Mandatory vaccination could also indirectly discriminate against employees with protected characteristics, for example religion or belief. It is possible that this could cover certain religious or moral objections to being vaccinated. For example, gelatine from pigs is often used in vaccines. This could be of concern for Muslin, Hindu, vegan or vegetarian employees.
Other employees may have a strongly held belief that vaccines are harmful to public health, but this may not amount to a protected belief.
Pregnant women, or women who are trying to conceive, may also object. Whilst the current guidance suggests that women in these positions are safe, that may not alleviate their concerns.
In some discrimination claims, justification is a defence where the employer can show that it was pursuing a legitimate aim and the measures it took were appropriate and proportionate. It is highly likely that an employer would be able to satisfy the first limb of the test in that it was protecting the health and safety of staff and customers. But the second limb of the test may be more difficult to establish if an employer could have used less discriminatory means of achieving the legitimate aim.
For example, an employment tribunal is likely to ask why the introduction of Covid secure guidelines, home working or deployment to a different role, or even introducing regular testing, as a less discriminatory means of achieving the health and safety legitimate aim.
If an employee brings a claim of direct discrimination the employer cannot use the defence of justification unless it is a direct age discrimination claim.
It is possible that mandatory vaccination may breach an individual’s human rights. The UK remains a signatory to the European Convention on Human Rights (“ECHR”) after Brexit so the UK courts are required to interpret all legislation in a way that is compatible with ECHR. It is also unlawful for public authorities to act incompatibly with the ECHR, this may offer an additional layer of protection to a public sector employee. ]
However, the European Court of Human Rights felt that the Czech Republic’s mandatory pre-school vaccination requirements for children would not breach the ECHR. Although this case does not specifically deal with Covid-19 vaccination, the judgement is helpful for employers.
Employers may be concerned that an employee could make a personal injury claim with its employer if he could establish that he contracted Covid-19 in the workplace. It has been reported that some employers insist that workers who refuse to have the vaccination sign a waiver stating that they understand the medical risks of the decision not to be vaccinated.
However, an employee cannot waive liability for any personal injury that was caused by an employer’s negligence and therefore, if the intention of such a waiver is to prevent the employee from making a personal injury claim, it is likely to be ineffective.
If an employee has less than 2 years’ service they could be dismissed by the lawful termination of their contract of employment, assuming that there is no discriminatory reason for dismissal or the reason for the dismissal is not automatically unfair.
For employees with 2 years service or more the employer would have to establish that there was a fair reason for a dismissal to defend an unfair dismissal claim. An employer could argue that the refusal was misconduct or that the dismissal was for some other substantial reason.
As stated above, it seems that the mandatory vaccinations in care homes is likely to be challenged and it is possible that that piece of legislation will not come into force on 11 November 2021 as planned. Unless and until mandatory vaccination is required by legislation in all industries, employers would need to tread carefully before they impose a mandatory vaccination policy and the best way forward is to try to encourage and persuade employees to agree to be vaccinated.
We recently held a webinar for care home leaders and HR professionals in care home settings regarding the introduction of mandatory vaccinations in care homes. You can watch this webinar by registering here: Mandatory vaccinations in care homes (office.com).
If you require any more information on this topic please contact Reggie Lloyd via email@example.com or 01206 217347.