A substantial proportion of the population has supported the universal implementation of the vaccination program in the UK. The road back to workplaces, public transport, socializing and normality is seen as widespread vaccination.
Most of the coverage in the news focuses on how easily people can receive the vaccine. But for a number of reasons – for others, caution about the pace of development is a major concern – not everybody wants to be vaccinated. The question that now arises is whether vaccination can be made mandatory by an employer?
Possibly not, in short. Unlike Denmark and some U.S. states, the U.K. The government has indicated that it does not plan to make vaccines compulsory.
Employers in the UK, however, have a legal duty to guarantee their workers that the workplace is safe. This may include ensuring that when dealing with colleagues who have not been vaccinated, workers are not put at risk.
Some employers can make it an occupational necessity for vaccination to perform a specific job. When an employee declines, it may be argued that he or she has been contractually bound to do his or her job safely, or that he or she may have denied management a fair order.
For jobs in clinical settings or the nursing industry, where workers will have close contact with vulnerable groups, this is possibly predictable. It is important to note, however, that (with a few exceptions) other vaccines are not obligatory for NHS employees, and there is no confirmation to date that the Covid 19 vaccination would be different.
This raises the question of whether, for health and safety purposes, it would always be fair for employers to make vaccination generally compulsory.
An employer should consider the legal grounds for termination before firing an employee for refusing to be vaccinated.
Furthermore, the employer must first determine if appropriate alternatives to termination are available. As always, the circumstances of each case should be treated carefully.
Dismissals for failure to vaccinate bear the possibility of complaints of discrimination as well. Owing to some religious convictions, some workers may refuse to be vaccinated. The topic of whether being a ‘anti-vaxxer’ is a protected religious conviction may be the focus of potential litigation under the Equality Act 2010.
These steps may have a detrimental effect on employee relations even though an employer could justify enforcing a vaccination policy or legally defend a vaccination-related dismissal. While some workers are in favor of vaccinating their colleagues, others see it as the employer’s overreach.
It is difficult to find the right balance, and the better policy of “actively encouraging” workers to vaccinate rather than “requiring” them to do so would be followed by many employers instead. This will be a comparable approach to the annual flu shot that many workers are encouraged to get.
The situation is changing continuously, as with everything in this pandemic. Employers may have some time to reconsider their workplace approach to vaccinations. Before next summer, it looks like those under 50 who do not have a disease will not be able to get vaccinated. The pressure to get vaccinated can ultimately have nothing to do with the workplace. If we see that “immunity passes” are a prerequisite for admission to venues such as soccer stadiums or long-haul flights, then the situation will change again. If vaccination becomes a ticket to a “normal” life where we have options, then it is genuinely possible for us to determine whether to be vaccinated.
Gillian MacLellan is a partner at CMS, a multinational law firm.