The UK government’s vaccination programme has gathered momentum. With over 15 million people having now received their first dose of the vaccine, it is the fastest and largest vaccination campaign in history.
Whilst welcomed by many, the government’s ambitious vaccination programme raises a number of legal issues from an employment law perspective and a key concern for many employers and employees is likely to be whether employers can require their employees to be vaccinated.
Is it 'reasonable'?
In an employment contract, there is an implied term that employees will follow all lawful and reasonable instructions given to them by their employer. If an employee fails to follow reasonable instructions their employer may be able to dismiss the employee on grounds of misconduct.
Whether or not an instruction to take the vaccine is reasonable will depend on the nature of the job and the risk of exposure to the virus in the workplace.
Sectors such as health care and social care, and those required to travel frequently will likely request employees take the vaccine.
On the other hand, it may be less reasonable for an employer within the professional services sector to request that employees take the vaccine if they are able to easily perform their job from home and vaccination will not affect their ability to carry out their role.
Is dismissal an option?
An employee who refuses to comply with a reasonable instruction to be vaccinated may be subject to disciplinary action, including dismissal. Nevertheless, it is important that the dismissal process is fair and the employer will need to establish that the refusal of vaccination is unreasonable.
Employers should be extremely careful where an employee’s refusal is related to a protected characteristic under the Equality Act 2010 which may prohibit them receiving the vaccine. Such employees may file a discrimination claim or claim for unfair or constructive dismissal.
Employers should therefore consider whether any alternative measures could be used to meet health and safety obligations, such as remote working or providing employees with suitable PPE.
What to do now?
Given the potential risks surrounding unfair and constructive dismissal and discrimination, employers should carefully consider whether it is appropriate to require that employees are vaccinated.
That being said, employers have a basic obligation to take reasonable steps to protect the health, safety and welfare of their employees under the Health and Safety at Work Act 1974.
Employers should consider the vaccine as part of any Covid-19 risk assessments carried out and, at the very least, ensure staff have access to reliable information about the vaccine, so that they are able to make an informed decision as to whether to take the vaccine or not.
British companies are looking to draw up “no jab, no job” contracts for employees, as the government admitted that it was “up to businesses” if they wanted workers or customers to hold coronavirus vaccination passports.
https://www.ft.com/content/965dfaf0-f070-4dae-93a6-28bedbdb75da