As COVID-19 vaccines continue to be rolled out, it is being asked whether employers can insist that their staff be vaccinated. As with most things’ employment law, the answer is not simple.
Getting straight to the point(!) is consideration of whether such a request is a ‘reasonable management instruction’ by the employer? Ultimately, this is a balancing exercise between the employer’s reasons for requiring the vaccine and the individual’s rights and reasons for refusal. The nature of the individual’s role, where they work, their interaction with/proximity to others, and the employer’s health and safety-related duties and workplace risks will be key (although not exhaustive) considerations.
A detailed consideration of alternatives, such as workplace testing, maintaining social distancing, home-working, providing PPE or encouraging staff to be vaccinated instead of mandating it, will also be important.
Factors relevant to the balancing exercise will differ between businesses, e.g. employers in the health and social sector may be in a stronger position to demonstrate that a requirement to have the vaccine is reasonable because otherwise vulnerable people could be put at increased risk. This is in contrast to staff in the typically office-based professional services sector, where staff can more easily work from home.
If an employer can establish that it has given a reasonable management instruction to have the vaccine and an individual has unreasonably failed to follow it, it may be able to lawfully discipline the individual and possibly dismiss them. However, employers should tread very carefully before taking this action, as there is no established case law illustrating how these matters will be determined by an Employment Tribunal, should the individual bring a legal claim.
It’s likely most employers will encourage their staff to be vaccinated, rather than mandating it. However, those employers who mandate the vaccine should take several practical steps before implementing this requirement. These include (but are not limited to) discussing the proposals with staff and unions, and allowing staff a reasonable opportunity to raise questions. Employers should listen to any concerns raised and work with the individual to find an acceptable solution. This should be done before deciding whether to take more formal action, as there will undoubtedly be some who have valid reasons for refusing the vaccine, e.g. those who suffer from a medical condition and are advised not to have the vaccine and those who are pregnant. In either example, there is a high chance that the individual will not have failed to follow a reasonable management. They may also be protected under the Equality Act 2010 from suffering discriminatory treatment e.g. disciplinary action or dismissal, as a result of their refusal.
Laura Roper, Porter Dodson