COVID-19 | Can we force employees to get the vaccine?
On 2 December 2020, the UK became the world’s first country to approve the Pfizer-BioNTech vaccine. Less than one week later, the first jab was administered.
Following 10 months of disruption and chaos, a whirlwind of economic turmoil, and nearly 70,000 deaths UK-wide, it seemed that a light has finally appeared at the end of the tunnel.
However, there remains a final, predictable fork in the road. Whilst employers may be breathing a sigh of relief, the issue of obtaining collective buy-in from workforces is becoming apparent, with many naysayers and ‘anti-vaxers’ already expressing their disapproval at the prospect of receiving the vaccine.
With this in mind, the obvious question looms for businesses across the UK: can employees be compelled to have it?
The legal position
Unfortunately (or fortunately, depending on your stance) the short answer is ‘no’.
It’s very difficult to persuade employees to do anything that they do not want to do and the employer’s options in this scenario are limited . However, as is to be expected in the realm of employment law, there is an array of caveats to consider.
But let’s start with the basics. Firstly, at the time of writing (5 January 2021), there is no legal requirement for anyone to receive the vaccine in the UK. By extension, it stands to reason that employees should not be forced to do so.
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However, if the employer feels it’s imperative that the entire workforce is vaccinated, there may be an avenue to take disciplinary action in the event of a refusal. This is a question of reasonableness. For instance, if the employee is responsible for providing care to members of the public, then the employer could argue that vaccination is crucial in the interest of protecting the recipient of the care.
That said, nothing is guaranteed, and each case will be judged on its merits. James Tamm, Director of Legal Services at Ellis Whittam, says employers should proceed with caution. He explains: “Taking disciplinary action against employees for refusing to have the vaccine would be fraught with risk and there are several factors to be taken into account. Firstly, is the request a reasonable one in the first place? That will depend on the nature of the employer’s business and the employee’s role. Secondly, an employer must also consider the employee’s reasons for refusing to take the vaccine.”
Could refusal be legitimate?
At this early juncture, it’s important that employers consider all possible scenarios, including the various reasons that could be given for refusing to take the vaccine.
James advises: “If there are genuine health, religious or philosophical concerns – and I don’t simply mean internet conspiracy theories that the vaccine is unsafe – then they should be taken into account by the employer and weighed against their reason for insisting the vaccine needs to be taken.
“In a disciplinary case, it is always important to weigh the employee’s mitigating circumstances against the alleged offence before making a decision and these sorts of cases would be no different.”
On this basis, it could be argued that legitimate health-related or religious reasons would prevent employers from taking disciplinary action. If the nature of the work meant that employees without vaccinations could not attend then, in turn, this may require employers to provide full pay or statutory sick pay to the employee in the event that they refuse to receive the vaccine. These are issues that could potentially be discriminatory and, if raised, should be considered thoroughly before action is taken.
That said, if the employee cannot provide a legitimate reason, it is arguable that they are not ‘ready, willing and able to work’, and therefore are not entitled to pay.
Though it’s hard to say for sure at this early stage, it’s likely that vaccination will become a complex issue for employers to navigate. So, if you’re in doubt about how to handle this, the best course of action is to seek professional advice as soon as possible. That said, here are a few final points to consider.
Firstly, before any drastic or conclusive action is taken, consider whether the individual can continue their work remotely in the event that they refuse to be vaccinated. Not only would this contribute towards safeguarding the remainder of the workforce, but it may allow both employer and employee to avoid a potentially complicated legal issue.
Secondly, employers must consider the parameters of on-site conduct for those who have been vaccinated. Once again, at the time of writing, the UK government has not published any guidance to suggest that COVID-19 guidance does not apply in this scenario. Based on this, Ellis Whittam’s Health & Safety Director, Nick Wilson, says: “We strongly advise that the same control measures are followed until anything to the contrary is released. In many cases, this may involve further monitoring of employees to ensure that complacency does not creep in as a result of being vaccinated.”
Finally, employers should consider how their approach to communication can work to their advantage in this scenario. Though the vaccination is, as we’ve already discussed, a voluntary procedure, organisations should consider implementing some gentle encouragement measures. These may include invoking the importance of various health and safety principles, and generally appealing to the better nature of the employee.
Specialist advice on your specific situation
COVID-19 continues to present employers with difficult employee dilemmas. From refusals to work to issues around vaccination, our Employment Law and Health & Safety experts can help you to identify the best course of action, follow the correct process, and minimise disruption and legal risk.
For specialist advice and support, call 0345 226 8393 or visit our free Coronavirus Advice Hub for all our employer guides, FAQs, document templates and other helpful resources.
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