Alec Colson, Partner and Head of Employment Law at Taylor Walton, discusses whether COVID-19 vaccinations should be a legal requirement for employees.
Although there is no legal provision that permits an employer to make COVID-19 vaccines a condition of employment, some organisations have expressed an intention to make it a requirement, in a bid to protect employees and customers.
However, the legal position in this area is unclear. Compulsory vaccines may be intended to keep workers safe, but in reality they’re a legal minefield that can put businesses at serious risk of breaching strict rules and guidelines. Therefore, its crucial that organisations exercise caution before introducing any Coronavirus policies, taking individual circumstances into consideration too.
Background information
Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974) an employer must take all reasonably practicable steps to reduce workplace risks.
Additionally, under section 7 of the HSWA 1974, an employee has a duty to cooperate as necessary with the employer to enable it to comply with any statutory requirements. Whilst employees want to be reassured that they’re working in a safe environment, this is unlikely to extend to employees being legally required to take the vaccine. Instead, organisations must wait for further guidance from the government on what measures an employee may be required to take.
The meaning of “reasonableness” is likely to depend on the business sector of the employer and the services it provides. For example, the request of an employer operating in the social care sector for its employees to take the vaccination could be argued to be a ‘reasonable management request’ as refusing to take the vaccination could pose severe risk to fellow employees and patients, thereby threatening the business.
Therefore, dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fairly, either on conduct grounds or for some other substantial reason. The position in other sectors is likely to be less clear and in any event, an employer should proceed with caution before deciding to dismiss.
Employers will need to consider other available alternatives which may include moving the employee to another role involving less contact with clients or other employees. In all sectors, the employer will also need to consider carefully the circumstances of the individual employee. The risks include discrimination on the grounds of religion and belief, disability, pregnancy and breaking data protection legislation as well as unfair dismissal if the employee has unfair dismissal rights.
Religion and belief
Its unlikely that an “anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. However, not all vaccines in production have released their list of ingredients and its possible that gelatine may have been used in some vaccines or in its production process. Therefore, an employee with certain religious beliefs or vegans may have religious or philosophical grounds for refusing to take the vaccination.
Disability discrimination
If an employee has been advised by their doctor not to take the vaccine on medical grounds an employer’s requirement to take the vaccine may amount to disability discrimination. Even if the employee isn’t disabled, a tribunal may find that the request to the employee to go against medical advice is an unreasonable request in any event. An employee’s fear of needles (trypanophobia) may also amount to a disability and therefore the employer would need to consider whether it could provide alternative working arrangements, such as working from home on a permanent basis.
Draft policies carefully…
Whilst making COVID vaccinations a condition of employment may sound like a reasonable step to protect the health of workers, the position is far more complex and presents numerous legal issues which businesses must consider. Not only this, but there are a lot of individual circumstances that could impact employees, such as religion and disabilities. With the situation constantly changing, it’s crucial that employers keep up-to-date with the latest developments, so they can develop their own pandemic policies accordingly.
Remember, even though the vaccine rollout is positive news for businesses, that doesn’t necessarily mean the pandemic story is at an end, so organisations should still proceed with caution.
