Can an employer force staff to have a vaccine?
- AuthorNatasha Johnston
Employers and employees may have noted with interest a story in the media about high profile firm, Pimlico Plumbers, which is allegedly planning to rewrite its workers’ contracts to require them to have the Covid-19 vaccination if it is safe for them to do so.
From an employment law perspective, this issue is complex. Rewriting contracts with existing workers and employees is something that should be done collaboratively, following strict protocols and practices, not simply delivered as a fait accompli. Legally, companies may find they cannot force employees to take a vaccine and people who refuse vaccination and are subsequently dismissed may have grounds to make a legal claim.
However, clearly, when it comes to receiving the vaccine, there are different thresholds of need in every sector. If, as an organisation, you operate within the social care sector, for example, you may be able to successfully argue it is a ‘reasonable management request’ for employees to be vaccinated on the basis that Covid-19 poses a serious risk to the vulnerable individuals you care for.
As an employer, you would need to consider which teams you deem to need the vaccine in order for your operations to function. You should consider what action you would want to take if staff refuse vaccination - would it be a disciplinary matter, or could you offer them an alternative role?
It is important to note that such an instruction might not be deemed reasonable and any process you follow to manage the fall out of a refusal must be fair and based on the individual circumstances.
You must carefully weigh up the fact that an employee who refuses the vaccine could argue that there is a discriminatory issue to consider such as:
- Age - if you enforce a vaccination regime where staff would not be offered it on age grounds as part of the wider NHS roll out you should consider if you are placing a particular age group at a detriment.
- Disability - if an individual is advised not to have it due to a medical condition, for example, they have documented reactions to vaccinations or they have an extreme phobia that causes anxiety around vaccinations/needles.
- Sex/pregnancy - with differing advice about the safety of the vaccine for pregnant women, may be unable to obtain a vaccination until after the birth of their child, they should not be penalised for this.
- Religion or beliefs - there have been a number of document issues within the media surrounding religion and the vaccination, you should be careful in the management of situations if individuals refuse the vaccination on religious grounds. As a further consideration, it could be considered a philosophical belief to be an anti-vaxer.
There are also potential Data Protection issues here. Vaccination records are medical and sensitive personal information - you should weigh up why you need to hold such information and how you will safeguard it.
We are still in the very early days of the rollout and anxieties are running high. An employer would need to be able to substantiate the fact that vaccines are a necessity from a health and safety standpoint in order to justify disciplinary action or treating employees differently if they are not vaccinated.
It is likely an employer would need to show they have exhausted all other measures to protect the health and safety of staff and those they come in contact with before they could reasonably justify mandating the vaccine to protect staff.
If employers want to make it a job requirement to have vaccinations this would need to be expressly incorporated into employment contracts and a contract variation process including meaningful consultation would need to take place to make this amendment after the fact.
The HR Services team at JCP Solicitors is offering a short term retainer to assist local businesses with HR issues linked to the coronavirus pandemic, for more information please click here.
For more information contact Natasha Johnston on 01792 525478 or email firstname.lastname@example.org.