Legal

Can employers force their employees to have the vaccine?

As most adults in the UK have now received their second dose of the COVID-19 vaccine, employees are starting to return to the workplace.

In the US, employers such as Google and Netflix have suggested that they will be obliging their employees to be vaccinated before returning to the office. This decision reflects the view of many managers and employers here who, in a survey earlier this year, indicated a preference for a mandatory vaccination policy. Some employees, however, consider that this would be an infringement of their human rights and that they should be free to choose whether to have the vaccine or not. How can litigation best be avoided in these circumstances? The Government has to date only legislated for the vaccine to be compulsory for workers in registered care homes in England. If employers outside of this sector were to introduce a blanket policy requiring employees to be vaccinated before coming into the office, without making any exceptions, a number of legal issues could arise.

A duty of care

Employers are responsible for health and safety management in the workplace. They must protect the health, safety and welfare of their employees and the people that they come into contact with, such as customers or service users. Clearly, minimising the risk of exposure to COVID-19 falls within that remit. Many employers may see these duties as justifying the imposition of a mandatory vaccine policy. However, requiring all employees to be vaccinated before coming in to work, and disciplining those that refuse, may in some circumstances breach the implied duty of trust and confidence or constitute discrimination. Despite the apparent success of the vaccine in reducing the number of serious cases of COVID-19, some employees may be at greater risk if they have the vaccine and may have been advised by their doctor not to get vaccinated. Requiring such employees to be vaccinated as a condition of returning to work could lead to an unfair dismissal claim if the employee has more than two years’ service. Pregnant women may also have protection under discrimination law. Current Government advice is that pregnant women should be vaccinated. However, previously, the advice was that pregnant women should not be vaccinated. The change in advice and the fact that other drugs have affected foetal development in the past may lead to some pregnant employees not wanting to be vaccinated. Most employers are likely to be reluctant to force them to do so. Generally, employers should also take into account any relevant religious or other protected beliefs, as introducing a policy which is harder for one group to comply with could amount to indirect discrimination on one of these grounds.

Uncharted territory

Most of the legal issues which could arise from the introduction of vaccination policies have not yet been tested in the Employment Tribunals. However, in the meantime, employers can minimise the risk of such claims by explaining their reasoning to staff and taking proper account of any legitimate objections that are raised. Employers should therefore inform staff of the available information on the potential advantages and disadvantages of vaccination, to assist them in making an informed decision. They should explain that they are acting in accordance with their duty to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace and system of work. They may also wish to support their staff by offering paid time off to attend vaccination appointments and for absences if the vaccine makes them unwell. Acas and Public Health England also recommend sharing information about the vaccine to counter any inaccurate claims about its effectiveness and safety, as well as letting staff know where they can get the vaccine in their local area.

The carrot or the stick?

An employer could argue that a vaccination directive amounts to a reasonable management instruction on the basis that it is intended to protect health and safety. Ordinarily failure to follow an employer’s reasonable instructions can lead to disciplinary sanctions, including dismissal. However, whether a vaccination requirement would amount to a reasonable management instruction for these purposes would depend on a range of factors including the nature of the employee’s role and the employer’s business, how effectively the employee could work from home, the employee’s reasons for not wanting to have the vaccine, and how closely employees were required to work together within the organisation in question. Some employers may seek to amend existing employment contracts to require vaccination. Generally employment contracts cannot be changed without employees’ consent and simply imposing the change could result in claims of constructive dismissal and discrimination. Given the risks involved, it seems likely that many employers will shy away from imposing blanket requirements or changing contracts, and will instead elect to introduce a vaccination policy which encourages as many employees as possible to have the vaccine, but which also takes into account legitimate individual concerns and objections.

Jeremy Coy

Senior Associate Direct: +44 (0)20 8394 6225 Jeremy.Coy@russell-cooke.co.uk