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Can an employer force an employee to get a coronavirus vaccine?

Principal Solicitor, Paul McGowan

As we enter 2021, the vaccination efforts against COVID-19 are looking promising, with the UK having approved three vaccines at the time of writing (the Pfizer, AstraZeneca and Moderna vaccines) and the vaccination rollout effort has already begun in earnest. However, the question on many employers’ minds is whether they are able to have any say over whether their employees get a coronavirus vaccine. From an employment law perspective, this is a highly sensitive issue that will understandably require delicate handling. We have set out some points below for employers to consider.

Can employees refuse to get a vaccine?

When faced with an employee who is unwilling to be vaccinated, it will be important for their employer in these circumstances to establish the basis for their refusal. For example, if it relates to a medical condition which they have, a religious belief or their age then these are examples of things which may amount to protected characteristics and the employee may have protections under the Equality Act 2010, including that they should not be treated less favourably as a result of their protected characteristic. Employers should be careful not to automatically assume that an employee’s refusal stems from misinformation about the vaccines and should communicate with their employee to understand the reasoning for their refusal.

Can I dismiss an employee who refuses to be vaccinated?

In addition to the any discrimination issues which may arise, an employer must consider the fact that employees may have protection against being dismissed unfairly. An employer seeking to discipline or dismiss an employee for refusing or failing to get vaccinated should  follow a fair procedure before taking the decision to dismiss and should certainly seek specialist advice before taking such a decision. Guidance from ACAS suggests that this could be treated as a disciplinary issue, and therefore one which could result in dismissal, but this would be dependent on factors, such as whether the employee needs to be vaccinated in order to carry out their role.

What can I do about employees who are not vaccinated?

At present, employers should ensure that there are robust measures in place to ensure the health and safety of their employees and to minimise the risk of COVID-19 infection. As vaccines are rolled out to the population, these measures may naturally be eased in time in response to mass immunity. However, employers should still have regard for those employees, and visitors such as customers, who have not had the vaccine and this may be a factor to consider when assessing health and safety risks in the workplace and continuing with coronavirus-related measures such as social distancing, hand washing and wearing masks.

Comment

We have already seen some companies announcing that they would dismiss those who refuse to be vaccinated and others who are utilising IT systems to note which employees have received their vaccines. Whilst these approaches may be appealing to employers, they are not without risk and employers should be careful when looking to implement blanket policies on vaccination. All employers will likely have to consider the implications of the mass vaccination of the workforce at some point this year and this is likely to be a hot topic in employment law in the months ahead.

To provide advice and guidance to employers, Collingwood Legal is running a webinar on ‘Managing Employees in a COVID World’, where we will cover areas such as, employees refusing to attend work, managing annual leave and health and safety issues. You can find the details of the event here.

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