As the COVID-19 vaccine is being rolled out across the country many employers are considering the question of mandatory vaccinations for their employees; employers are understandably keen that their employees are vaccinated in hope of returning to the workplace and some form of normality. In this article we consider some of the legal issues.

It should be noted from the outset that currently there is no UK legislation that the vaccine should be mandated nor has the UK Government suggested that it is likely to be made mandatory. It is also clear that vaccines will not be commercially available for some months and that younger members of the public who also do not fall into any of the vulnerable categories, will be the last to be offered a vaccine. That said, business should begin to discuss these issues now, so that vaccination can be included in risk assessments, and any potential points of conflict can be addressed.

Health and safety

  • Employers have a legal duty to take reasonable care for the safety of their employees and to reduce any workplace risks. It is therefore advisable to consider the vaccine when undertaking COVID-19 risk assessments, including the measures that might be taken where an employee decides not to get vaccinated.
  • To meet health and safety duties, it may be reasonable for employers to encourage employees to be vaccinated to protect themselves and others in the workplace. However, whether employers should take the further step of mandating vaccination, as a health and safety requirement, is less clear. Scientists are currently investigating whether vaccination prevents a person from transmitting the virus to others, which is clearly a relevant factor.
  • Employers should also bear in mind that vaccination will also not offer total immunity. Employers cannot therefore rely on it as a control measure when planning for the future; they must also ensure other COVID-secure measures are in place.

Can employers require employees to be vaccinated?

  • It is unlikely that there is an express contractual right or power for an employer to compel employees to have a vaccination. In the absence of such an express power, the starting point for mandatory COVID-19 vaccination is whether this would constitute a “reasonable management instruction”.
  • In looking at whether an instruction is “reasonable” the courts will consider and balance the rights of an employee against the reasons for the instruction by an employer. The most pertinent employee rights here will be their human rights and associated rights under the Equality Act not to be discriminated against on the basis of protected characteristics. As stated above, from the employer’s perspective, the reasons for giving a vaccination instruction are likely to be to protect the health and safety of the employee, their colleagues and, in some cases, to protect other people who are vulnerable and with whom the employee interacts.
  • The issue is nuanced and a ‘one-size-fits-all’ approach will not work. Whether an instruction to get the vaccine is lawful and reasonable will depend on whether the instruction is a proportionate step in any individual case. For example, Acas acknowledges in its guidance on this issue that it may be reasonable to make vaccination mandatory where it is necessary for someone to do their job, for example where they travel overseas and need to be vaccinated.
  • If an employer is to look at a mandatory vaccination strategy, there would need to be a targeted approach with opt out arrangements in place and structured around a defined roll-out process.

Potential discrimination issues:

Disability: Those who have been advised not to have the vaccine due to a medical condition may argue that their disability prevents them from accepting a vaccination. Severe cases of fear of needles may also constitute a disability.

Religion and belief: Employees relying on their religion to argue that not taking a vaccine is part of their religious belief ought to be protected. For example, Muslim employees may refuse the vaccination if they contain pork gelatine . Similarly if the vaccine contained any animal product, vegans and vegetarians could object on the grounds of respecting their private lives and beliefs. Those with anti-vax beliefs may also assert their belief is a protected characteristic. An employee taking such a stance would need to establish that their belief was genuinely held, cogent, serious and worthy of respect in a democratic society.

Pregnancy and maternity discrimination: Current Public Health England advice states that pregnant women should not routinely have the COVID-19 vaccine. Any requirement or encouragement to take a vaccine should therefore have an exception for pregnant women.

Data Protection considerations:

Personal data which may be collected in connection with employee vaccination is likely to constitute special category personal data and will therefore need to be processed in line with GDPR and an impact assessment completed.

What does this mean for employers?

Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated when available. However, when considering whether to introduce a mandatory vaccine policy employers should take a cautious approach considering all the matters above. Effective communication and engagement with staff and unions will be key in all scenarios, as will a well-structured process. Any concerns raised will need to be properly considered and conclusions documented. Employers should tread carefully if considering disciplining or dismissing employees for refusing vaccination and should also consider alternatives such as moving employees or altering their roles so they are not exposed to as much risk, nor expose others.