robbryanassociates

Covid-19 vaccination: What can an employer do if an employee refuses to have a vaccine?

In covid-19, Employment law, Equality on March 10, 2021 at 11:00 am

Most people will welcome the opportunity to be vaccinated against COVID-19, but there will be a minority who will be reluctant or refuse to have the vaccine. The reasons could be many and varied, including individuals who cannot have the vaccine (for example, on medical grounds), those who can have the vaccine but refuse (for example, on religious or spiritual grounds) and those who can have it but have concerns and are uncertain (for example, due to a fear of vaccinations generally).
 
The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks; this duty gives employers justification for encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace. COVID-19 is also a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (known as RIDDOR) which strengthens employers’ encouragement that employees should agree to vaccination.
 
It may be prudent now for employers to begin planning for the wider rollout of the vaccine. Perhaps encourage concern staff with impartial, factual information or at least guide them towards it. Staff will need to be informed about the workplace controls measures and the impact and risks of COVID-19. Experience has shown that this needs to be repeated.
 
The press has reported that some employers want to make vaccination mandatory. One example Pimlico Plumbers (no strangers to the employment courts) stated that all new workers would have to receive or have received the vaccine. The phrase ‘no jab – no job’ was coined. Interviewed on Radio 5 the owner actually confirmed that he had no intention of firing anyone, or indeed enforcing the policy.
 
What we know for sure is that employers cannot forcibly vaccinate employees or potential employees. Mandatory vaccination is an intrusion on an employee’s body and would be an assault. More relevant in the workplace is forcing a vaccine may amount to indirect discrimination on the grounds of disability or religious or philosophical belief. Some employers would have a justification to act in that way, but this is not the answer in every case. The government has so far shown no intention of introducing legislation to make vaccines mandatory, but we may have to watch this space.
 
So, what if employees refuse vaccination? For the employer to discharge their health and safety duty, they may need to consider other steps. An employer could consider potential disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care), but this approach is not without risk and any employer considering this should seek specific advice from us before doing so.
 
Can the employer insert a clause into the employment contracts for new employees? Existing employees can be asked to agree to a compulsory vaccination clause as a variation to their existing contracts of employment.  However, even if employees agree to vaccination in their original employment contract or a variation of it, employers still cannot physically enforce this as an individual’s consent is always required for any medical intervention. Employers enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal.
 
Failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal. Whether an instruction to have a COVID-19 vaccine is reasonable has not been tested in the tribunals and courts. As there is at least a risk of unfair dismissal, discrimination and other claims, employers should consider their position very carefully before moving towards disciplinary processes and dismissal. Being a test case as one of the first employers to dismiss on the grounds of vaccine refusal is likely to be time consuming and potentially expensive.
 
Every employment contract contains an implied term that employees must follow their employer’s reasonable instructions. Whether an instruction to be immunised is reasonable depends upon the facts of each case, for example the nature of the role, the numbers of clinically vulnerable colleagues, the size and layout and people contact in the workplace. For example, employers in a nursing home may be able to issue a reasonable instruction to employees to be vaccinated because refusal could put vulnerable people at risk. Employers in another sector such as accountancy, where it has been shown that work can be done effectively from home, may be in a weaker position and an instruction to be vaccinated may not be deemed reasonable.
 
This is clearly not an area without risk and organisations should ensure they have up to date risk assessments and policies in place. As always if you wish to discuss this topic further please contact your consultant. 

  1. […] Covid-19 vaccination: What can an employer do if an employee refuses to have a vaccine? […]

  2. […] Covid-19 vaccination: What can an employer do if an employee refuses to have a vaccine? […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: