How do Employers deal with Compulsory Vaccines?

Posted on June 18, 2021

Headline news this week is that care home staff could face being shifted from frontline care or risk losing their jobs if they are not vaccinated. In a recent announcement the Government says vaccinations may become mandatory and they are to be given 16 weeks to have the jab.

The move could also be extended to other health care staff and the NHS - of course those staff who have a medical exemption from having any Covid-19 vaccination will be exempt from the new ruling.

This announcement will obviously affect employees and employers alike, previously it was said the vaccine would not be compulsory and it may have ethical and legal ramifications and cases under European human rights law or equalities legislation.

“This is certainly a controversial move by the Government. We need to see further detail as to whether there may be exemptions for care home staff who have medical reasons for not wanting to be vaccinated,” said Pearson Solicitors Head of Employment Law Susan Mayall.

“The more contentious issue however is care home staff who may refuse an injection on religious or belief reasons and this may result in employers having claims issued under the Equality Act for discrimination on grounds of disability, religion and/or belief and also may be a breach of human rights.”

Employers going forward will have to make a decision on whether or not to enforce compulsory vaccinations for all care staff.

“There will need to a fine balancing of risks and of people’s interest and balancing the risk of Covid-19 against the human rights and anti-discrimination laws of care home workers if they choose to refuse to have the jab,” added Susan Mayall.

“As always this is a constantly changing area of employment legislation and we will be keeping all our clients updated with news and how the latest Covid-19 issues affect workplaces and employment law.”

Can Employers force staff to have the Covid-19 Vaccine?

The recent news about the care sector has not yet been extended to the wider workplace and so employers would need to justify such a policy and carry out a risk assessment. Care staff and NHS staff are different to factory, supermarket and shop workers, in the same way office staff are not coming into contact with patients and the vulnerable on a daily basis and so it would be much harder to justify.

If vaccination becomes compulsory in a workplace it would mean a change to terms of the contract of employment.

Currently, a dismissal for refusing to be vaccinated could potentially lead to a claim of discrimination and unfair dismissal, or even constructive unfair dismissal if an employee feels pressurised to have the vaccine. If there is a change to make your workplace a compulsory vaccination area then it’s easier for employers to defend an unfair dismissal claim. As always it is advisable to see if redeployment can be offered to staff who wish to remain unvaccinated and as always communication with staff is advised.

Discrimination and the Vaccine

If staff refuse vaccinations it may have implications in the workforce. Some staff may not want to work alongside unvaccinated colleagues but the ACAS guidance quite clearly states that: “employers cannot force employees to be vaccinated”.

It is also a human rights issue protecting private lives under Article 8 of the European Convention of Human Rights and it has previously been the case that to make the vaccine mandatory it must be justified.

Having a Covid secure working environment is crucial to avoid unnecessary workplace issues and making sure employees are socially distanced helps. Additionally, as per the recent guidelines, if possible it is advisable to encourage employees to work from home.

Health and safety is an employers duty and most want to keep their workforce happy and productive.

However, given the recent Government news it would seem that a compulsory vaccine could lead to discrimination claims on the grounds of medical conditions, religious beliefs, age or pregnancy.

Vaccine hesitancy amongst some groups also raises the prospect of indirect discrimination claims.

For help and advice on all areas of employment law please contact Susan Mayall on 0161 785 3500 or email enquiries@pearsonlegal.co.uk

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.