No Jab, No Job?

Many employers will be focused on starting a return to the workplace and how to make it as safe as possible for returning staff. In addition to following government guidance on recommended measures for limiting transmission of Covid-19, such as strict social distancing, some employers may be intending on asking staff to be vaccinated against Covid-19. But to what extent can employers require mandatory vaccination?

Mandatory Vaccination

Whilst the government has recommended that certain individuals have the vaccine, they have not legislated for the vaccine to be mandatory. The regulations in this country cannot require a person to undergo mandatory medical treatment, which specifically includes vaccination, and therefore an employer cannot force its staff to be vaccinated without their consent.

Under current health and safety legislation, employers have a duty to protect the health of employees and existing vaccination guidelines state that if a risk assessment finds a risk of exposure to biological agents and effective vaccines exist, employers should offer to provide immunisations to those who are not already immunised, however, employees are at liberty to refuse immunisation.

Contractual provision

For existing staff, if an employer wants to make the Covid-19 vaccine a contractual requirement, changes in the terms of the contract would need to be agreed by staff. Employers who force this change without agreement will be in breach of contract and employees would be entitled to resign and claim constructive unfair dismissal. Employers must also be mindful that employees may be protected against discrimination and that they are likely to find it difficult to show the change in terms as reasonable.

In respect of new starters, employers could make an offer of employment conditional on an employee evidencing that they have been vaccinated, or introduce a vaccination clause into their employment contract but this is likely to cause practical difficulties for those new starters who have not been offered the opportunity to be vaccinated. Employers must also be mindful that job applicants are protected against discrimination in the same way as employees and that there will be data protection issues of requiring proof of vaccination and processing that data should also be considered.

Alternatives to mandatory vaccination

The ACAS guidance advises that it is best for employers to support and encourage staff in getting the vaccine without making it a requirement.

Employers should communicate with staff, the workplace’s recognised trade union or other employee representatives about the vaccine and share the benefits of being vaccinated.

Employer’s can encourage staff to get the vaccine by, for example, offering paid time off to attend vaccination appointments and/or not counting vaccine-related absences in absence records.

Employers should also consider what other alternative measures could be introduced to reduce the risk of Covid-19 transmission in the workplace such as continuing to allow staff to work from home or regular testing of those in the workplace.

If an employee refuses to be vaccinated

The ACAS guidance suggests that a refusal to be vaccinated could, in some situations, result in a disciplinary procedure but that this will depend on whether:

• It was required by the employer’s workplace policy;
• Vaccination was necessary for an employee to do their job;
• The employee’s reason for refusing the vaccine might be protected under discrimination laws.

Ahead of taking disciplinary action or dismissal, an employer should discuss the matter with the employee and consider the employee’s circumstances as individuals may have valid reasons for refusing to be vaccinated, for example, allergies. Employers must also be alert to the possibility that the requirement to be vaccinated could disproportionately affect some protected groups, such as those with certain disabilities.

Furthermore, employers should consider the potential reputational risk and the risk to workplace relations before dismissing an employee for refusing to have the vaccine.

Advice

If you need assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP 020 8290 0440.