January 26, 2021
The simple answer is NO.
Main things to consider:
There could be an impact on Human Rights issues and employment claims in accordance with the The Public Health (Control of Disease) Act 1984 which specifically states that members of the public should not be forced to undergo any medical treatment including vaccinations. To do so may give rise to human rights issues and other employment claims.
Any differentiation in treatment between those who have or haven’t been vaccinated may amount to indirect discrimination on the following grounds:
- Age: the vaccine roll out is currently based largely on age, at least in the first instance
- Disability – some employees may be advised not to have the vaccine due to a medical condition
- Pregnancy – the vaccine is not recommended for those who are pregnant, breastfeeding or planning on becoming pregnant
- Belief or Religion – an employee’s anti-vaccination position could amount to a philosophical belief under the Equality Act 2020. In addition, religious discrimination may occur as many vaccines use pig gelatine which could be a concern for several religious groups as well as vegans, all of whom are protected under the Equality Act.
What about where the employee is carrying out a high risk role, or working with vulnerable people?
In line with Health and Safety responsibilities, the employer has a duty of care to safeguard the safety of their staff. Where employees are required to work with colleagues in close proximity or they look after elderly and other vulnerable people, it could be argued that the vaccination is required to ensure that employees themselves are protected to avoid spreading the infection to the weak and vulnerable. For example, it could be argued that requiring a care home employee to be vaccinated, and disciplining them if they refuse, is reasonable because of the high-risk nature of the work – ultimately justifying disciplinary action or even dismissal. Employers could resort to invoking disciplinary procedures against those who repeatedly and without just cause refuse to be vaccinated. These measures should be taken after obtaining suitable legal advice and careful consideration of the above factors.
So in short- the answer is No, for now. However, like any tricky employment issue, things can change, so always get expert advice before making any potentially unpopular decisions….
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Can a business force an employee to be vaccinated?
In theory, if the employer has a wide and thorough medical examination clause in the contract of employment, they could rely on it to compel employees to be vaccinated. However, this may be very risky as there has to be an informed and voluntary consent of the employee.
If employees were compelled by their employers to be vaccinated, apart from human rights issues, there may be criminal implications such as trespass to the person, assault, unlawful injury, and battery. Additionally, as Careful consideration must be given to avoid such issues.
Can an employer indirectly compel vaccination?
Employers could use indirect measures to force staff to be vaccinated. This could include refusing entry to the building or certain parts of the building or prevent them from carrying out certain roles which can involve close contact with colleagues or service end users. Employers could resort to invoking disciplinary procedures against those who repeatedly and without just cause refuse to be vaccinated. These measures should be taken after obtaining suitable legal advice and careful consideration of the above factors. If the employee’s refusal is due to a disability or other protected religious or philosophical belief covered by the Equality Act, such actions by the employer may be treated as repudiatory, leading to claims for constructive dismissal and/or direct/indirect discrimination claims. It is essential that employers adopt a conciliatory approach, and to educate their workforce to enable them to make an informed decision.
The above sanctions by the employer against an employee who refuses to be vaccinated may be justified on health and safety grounds.
However, such action should not be taken lightly, and certainly not before having obtained legal advice. It is a case of balancing health and safety, medical benefits, human rights, personal beliefs, and the business needs. Does the vaccine suppress symptoms or reduce the risk of transmitting it? Is it really necessary in addition to all the other social distancing and hygiene procedures in place? It is the answers to these questions that will determine the reasonableness and fairness of the employer’s actions. Where the vaccine suppresses the condition, then disciplinary action could be justified on health and safety grounds especially if their refusal is unreasonable. It is crucial that employers obtain suitable HR advice before making any decisions or taking any formal actions.