Alan McCormack | Senior Associate

Covid-19 Vaccination – Employment Implications

There are increasing questions arising in relation to whether an employer can require its employee to receive the Covid-19 vaccination, or whether there would be any ability to discipline or dismiss them for a refusal to be vaccinated. 

The ACAS guidance advises that employers should support staff in receiving their vaccination, however cannot force them to be vaccinated.  It does acknowledge that it may be necessary to make a vaccination mandatory in circumstances where it would be necessary for that employee to do their job (for example, in a care home).

However, as it is not yet a legal requirement in the UK, an employer cannot force employees to be vaccinated without their consent, as this would amount to a criminal offence most likely.  However, an employer could be entitled to prevent any employees refusing their vaccination from entering a workplace or restricting their duties, which may affect that employee’s pay.

Receipt of a vaccination is a more significant issue for employers in high risk sectors, such as the care sector, where employees will be working with vulnerable individuals. 

It must be borne in mind that private vaccination is not available and therefore all individuals must wait their turn, in order of the priority that has been set out, to be offered their vaccination.  Therefore, any employer who decided to only allow vaccinated employees to return to the workplace could potentially lead to claims for indirect age discrimination by younger employees (although these could potentially be objectively justified).

In light of the possible issues, it is advisable for employers to consider how best to achieve voluntary vaccination amongst their employees, and what other protective measures could be introduced to reduce any risk of Covid-19 transmissibility in the workplace.  It would be recommended that consultation could be carried out with the employees (possibly via a Union if there is one in place), and employers should inform staff of the currently available information on the potential advantages and disadvantages of receiving their vaccination to allow them to make an informed decision.  This would be in accordance with an employer’s implied duty to take reasonable care of the health and safety of their employees and take reasonable steps to provide a safe work place. 

Any policy that requires an employee or job applicant to be vaccinated is likely to constitute indirect discrimination that would put individuals with a protected characteristic at a particular disadvantage compared to others.  Therefore, any employer vaccination requirement must not put employees possessing a protected characteristic (those being of a certain age group, those with a disability, pregnancy or maternity, sex, religion or belief) at a particular disadvantage.  This could also, depending on the circumstances, lead to a claim for direct discrimination. 

It is advisable for employers to introduce a vaccination policy, and consider carefully imposing any vaccination requirements.

Should you require any advice in relation to vaccinations in an employment context, whether you are an employer or an employee, then please do not hesitate to contact our specialist team today.

Alan McCormack

Alan McCormack

Employment Law Team

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