Welcomed by many, the Coronavirus vaccine is now being rolled out across GP surgeries and care homes, and to key workers across the UK. For a while, most recipients won’t be of typical working age. However, as the wider working population begins to be offered the vaccine, this will throw up issues for employers and employees.
Employers are likely to be in favour of all their employees being vaccinated, but not all employees will be as keen. There will be workers who are concerned about the vaccine and would prefer not to have it, for various reasons. What happens in this situation? Can an employer (or indeed the Government) force them to have the vaccine? This blog explores that scenario.
Employers can’t rely on the Government making vaccination compulsory. Despite some rumours circulating on social media, the Government has no legal powers to do this and has stated they have no intention in making it compulsory.
It will therefore be up to individual employers to decide whether they insist on vaccination, and what the consequences of refusal will be. For anybody having visions of their employer physically forcing a needle into their arm, this is not the type of force envisaged here. That would be a criminal offence (battery). The kind of force the employer might apply is forcing the employee into a choice difficult choice – have the vaccine or be dismissed. Can the employer do this? The answer is yes. There is nothing an employee can do in most circumstances to stop an employer from dismissing them, for whatever reason. The next crucial question then, is what can the employee do about that? The employee would potentially have a claim to an employment tribunal against the employer for unfair dismissal.
An unfair dismissal claim could be made under the Equality Act 2010. Being worried about having the vaccine is not a protected characteristic in itself, but if the employee’s reasons for not taking it are related to a disability, or for example, to their religion and belief, that might give rise to a claim that they have been treated less favourably because of their refusal.
Employees with less than 2 years’ service will not have any right to make a claim if they are dismissed for refusing the vaccine. For employees with 2 years’ service, they could make a claim, and a tribunal would have to decide whether the dismissal was unreasonable. Such a decision by an employer could well be found unreasonable:
- Essentially, it is a way of forcing the employee to have the vaccine, but which falls short of forcing a needle into their arm, which a tribunal might struggle to justify
- it is potentially in breach of Article 8 of the Human Rights Act and
- vaccine refusers may have genuine and reasonable fears about receiving the vaccine.
Of course, this does not prevent the employee from being dismissed in the first place. A tribunal claim is an imperfect remedy that will take a long time, will not result in immediate reinstatement, and will not result in a windfall settlement for the employee.
The question of whether the employer’s actions are reasonable also depends of course, on the type of employer it is. If it is healthcare, or another type of job involving vulnerable clients or patients, that might be more reasonable. That could be extended to personal care roles which involve close contact, such as hairdressing or beauty treatments, and a tribunal might find it reasonable to require those staff to be vaccinated. The question then is, how far does that extend? To those serving the public, for example in retail, or in hospitality? To put themselves in a stronger position, employers should be looking at what alternative roles they can offer refusing employees, before dismissing. It will be a while until this is tested in the tribunals, and each case is going to depend very much on individual facts.