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17 December 2020

Covid-19 Vaccination – can an employer make it compulsory for employees?

Whether an employer can (or should) make it mandatory for employees to have the Covid-19 vaccine is far from straightforward. There are many factors to consider alongside the legal points highlighted below.

At the time of writing, there has been no formal guidance for employers issued by the Government or the Health and Safety Executive regarding compulsory vaccination. It is still early days, but if an employer is considering whether to make vaccination compulsory, it will need to take into account and be aware of the legal issues outlined below.

Health and safety

Employers have legal obligations to take reasonable care and reasonable steps to ensure the safety of their employees at work, and to provide a safe place and system of work. This includes safety in respect of Covid-19.

Unfair dismissal

Dismissals for refusing to be vaccinated may result in unfair dismissal claims. 

Whistleblowing

Where an employee has brought concerns about certain health and safety matters to the attention of the employer, that employee may be protected from detriment or dismissal under whistleblower protection legislation.

Discrimination

There are a number of potential issues under anti-discrimination legislation where a policy requiring mandatory vaccination is introduced and/or employees are dismissed or subjected to any other detriment for refusing to be vaccinated, or not being vaccinated.

Religion or belief: Surveys have shown that a significant proportion of the population are not intending to take up the vaccine and therefore one issue is whether the “anti-vaxxer” beliefs of those opposed to vaccination are protected as being a philosophical belief. They would need to demonstrate that their beliefs are genuinely held, concern a weighty and substantial aspect of human life, are cogent, worthy of respect in a democratic society and are not in conflict with the fundamental rights of others.  

Employees may have religion or belief-based grounds for refusal, for example, if the vaccine is made from animal products, or where a vaccine’s development has involved animal products or testing.  

Disability: If an employee has a disability which makes it difficult or dangerous for them to be vaccinated, then the implementation of a vaccination policy could give rise to a claim of disability discrimination.  

Sex, pregnancy and maternity: Pregnant employees and those who have recently given birth are another category who may be concerned about vaccination. There are therefore potential sex, pregnancy and maternity discrimination issues to consider.

Age: Younger employees may have more difficultly accessing the vaccine if they are deemed to be a lower risk group. Therefore, in some circumstances, a mandatory vaccination requirement could amount to discrimination on grounds of age. 

Race: Similarly, if ethnicity is a risk factor and the vaccine is more readily available to certain groups on that basis, race discrimination is also a potential issue.

It may be preferable for employers to take other steps to protect the workforce that are effective, less contentious and less likely to damage employee relations. This could include facilitating and encouraging vaccination, and continuing and developing existing ‘Covid-safe’ measures or perhaps extending home working arrangements.

Other issues:

Reputational harm: The issue of mandatory vaccination can be controversial. Employers should not ignore the potential reputational harm which could arise from making vaccination mandatory and should consult over its approach to seek to explain the underlying reasons and seek consensus. Adopting a mandatory vaccination policy may also affect recruitment and staff retention, depending on how the policy compares with other employers and how public opinion develops in this area. 

Data protection: Information about an individual’s vaccination status will be sensitive personal data, which has strict protection under data protection laws. It will need to be processed and stored particularly carefully. 

Conclusion

Until the entire population has had the opportunity to be vaccinated and there is proper clarity on the effectiveness of the vaccine, vaccination alone is unlikely to be sufficient to control the risk posed by Covid-19 in the workplace. Other Covid-secure safety measures will still be required in the immediate future in order to prevent transmission, avoid outbreaks and to comply with the duty to provide a safe place of work. 

Given the evolving situation, whilst it is not too early for employers to be planning and assessing the impact which the availability of a vaccine will have on workplaces, implementing mandatory vaccination requirements for employees and applicants remains an untested and potentially risky strategy from an employment law perspective.

The situation is not static and employers should keep themselves informed and up to date with the latest advice and guidance to decide what is the most effective and appropriate way to protect their employees and those coming into contact with them.


This article was written by Anne-Marie Balfour and Anisha Vyas. For more information, please contact Anne-Marie on +44 (0)20 7427 6627  or at anne-marie.balfour@crsblaw.com or Anisha on +44 (0)20 7427 6539 or at anisha.vyas@crsblaw.com.

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