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Can Employers Require Their Employees to Vaccinate Against Covid-19?

Can Employers Require Their Employees to Vaccinate Against Covid-19?

Can Employers Require Their Employees to Vaccinate Against Covid-19?

As we reach a point in time where a significant percentage of the UK’s adult population have received both doses of the Covid-19 vaccine, and we are at a point where the vaccine is available to all adults, it will now be far easier to identify those individuals that have chosen, so far, not to accept the invitation to be vaccinated. 

There will be numerous reasons why certain individuals have made the choice not to have the vaccine, however, whatever those reasons may be, the companies that employ those individuals will undoubtedly have questions about the options they might have available should they prefer their employees to be vaccinated moving forward.  

Can we ask employees to have the vaccine?

As a starting point, there is nothing stopping an employer from encouraging their employees to have the vaccine if they have not done so already. There are several things that an employer can do to encourage this, including communications presenting the health and individual benefits of the vaccine, time off for employees to have the vaccine and communications presenting the benefits to the business of employees having the vaccine. 

However, if that doesn’t work and there are still employees in the workforce who are hesitant or do not want to have the vaccine, it is not possible for an employer to compel an employee to have the vaccine. This is a right that even the government do not have, so there is nothing that would allow an employer to do so instead.  

It may be possible for employers to implement a ‘no-jab-no-job’ policy for future staff in some instances.  However, it will be very difficult for employers to apply this retrospectively to existing staff.  HR Managers and HR Consultants should be very careful about recklessly rolling out such policies. Care should be taken to factor in important considerations such as medical, religious and ethical reasons why a candidate may genuinely be unable to have the vaccine.  This is discussed further below.

We work with vulnerable clients; can we require the vaccine on health and safety grounds?

Possibly. This will very much depend on the facts of each case, which will include the type of work the employer carries out, the clients involved and the role of the employee(s) that you would like to compel to have the vaccine. 

However, like the rest of the population becomes fully vaccinated, meaning that most if not all clients will be protected with a double dose, the strength of any arguments relating to their protection begins to fall away rapidly. There could still be certain very specific circumstances that might allow it, but it is highly recommended that specialist advice is taken before proceeding here. 

Furthermore, the Government have introduced legislation compelling care providers to ensure their staff and regular visitors are vaccinated.  This is a very limited set of regulations and even then there are exceptions.  For example, it does not apply to staff who cannot have the vaccine for clinical reasons.

We have asked employees to have the vaccine, but some are still refusing, can we dismiss them?

We would strongly advise against this approach except in the most severe of circumstances. Whilst the option of dismissing an employee in these circumstances is of course there (because there are very few scenarios in which an employer cannot physically dismiss an employee), there is a very high probability that any employee dismissed in these circumstances would have a claim for unfair dismissal where they have two years’ continuous service.  If the employee then has a medical condition or other specific reason for not having the vaccine, it could also result in a disability claim.

There are normally several grounds on which an employer can dismiss an employee fairly. One is in circumstances where an employee exhausts the disciplinary outcomes available and is dismissed with notice for a series of conduct or performance-based issues. That would not apply here. 

Redundancy would not apply here either.  The illegality would be almost impossible to argue too.

Another is where an employee is dismissed for committing an act of gross misconduct. Again, that would not apply here as any instruction to employees asking them to have the vaccine is simply a recommendation and not a management instruction.  In the vast majority of instances, an instruction to vaccinate is unlikely to be a reasonable instruction enabling dismissal if the employee refuses with good reason.

The last is where an employee is dismissed for some other substantial reason. This is normally reserved for more specific circumstances and again, would not apply in a scenario where an employee refuses to have the vaccine. 

The result of this is that any decision to dismiss an employee on the basis that they have not had the vaccine comes with a significant risk of a claim and a possible award for employees of up to 12 months’ salary. 

For any employees with less than two years’ continuous service, it may be that an employer has more options available. Those employees cannot make a claim for unfair dismissal, but caution should still be exercised as they may have claims for discrimination in certain circumstances. 

For example, some vaccines contain gelatine, derived from pigs, which could exclude Muslim employees from having it on religious grounds. There may be other employees who have been advised against the vaccine because they have ongoing health issues. In these circumstances, the employees are not having the vaccine because of reasons connected to possible protected characteristics, meaning any decision to treat them detrimentally, such as through a dismissal, would amount to possible discrimination. 

As you will see, this is a complex area and it is important that proper legal advice is taken before any decisions are made. 

Can I stop un-vaccinated employees from attending the workplace until they have been vaccinated?

This is very unlikely to be a justified decision and it could lead you to the same difficulties as if you had dismissed an employee as we have explored above. 

If you refuse to allow an employee with more than two years’ service back into the workplace when others are allowed, there is a very good chance that the employee would be able to argue that the employer’s actions have undermined the implied term of trust and confidence. This would allow the employee to resign and still argue that they have been dismissed as a result of the employer’s actions. 

If, as we explored above, an employee has not had the vaccine because of a connection to a protected characteristic, the decision to not allow a return to the office would be a detriment and/or less favourable treatment and it would lead to a possible claim for discrimination. 

Therefore, it is just as risky to refuse an employee access to the workplace as it would be to dismiss them. 

Can we refuse to consider a candidate for a job if they have not had the vaccine?

It has been reported that some businesses in the UK will be adopting this approach, sometimes referred to as ‘no-jab-no-job.’ Whilst this carries far less risk than the issues we have explored above, there are still careful considerations that need to be made. 

The most significant risk is that a job is deliberately not offered to a candidate who has not had the vaccine because of a reason connected to a protected characteristic. Although not yet employed, candidates for employment are still protected by the provisions of the Equality Act and can still bring a claim against a company that has refused to employ them for reasons relating to a protected characteristic.  

This leads to a further hurdle. In order to know if it is safe to reject a candidate, you would need to know the reasons for them not having the vaccine. However, candidates do not need to, and normally won’t, disclose medical history or even religious affiliation at the application and interview stages. Given that employers cannot compel the disclosure of such information, there remains a significant risk in blindly rejecting candidates on the basis of their vaccine status.  HR Managers and HR Consultants must be very careful in their approach to ‘no-jab-no-job’ policies and therefore we would advise significant caution here. 

It is clear that this is an area where expertise is needed. We would highly recommend having trusted advisers in your corner to help you get this right. Wilford Smith’s business-focussed services specialise in Employment Law, Commercial Law, Company Law, Commercial Conveyancing and Regulatory and Criminal Investigations. 

We can be your trusted adviser in all areas.

 

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