COVID-19: can employers require their employees to be vaccinated?

Now that the rollout of the COVID-19 vaccine has started, employers are asking whether it's possible to make vaccination a requirement of coming back into the workplace.

Employers are under a duty to ensure, so far as is reasonably practicable, the health and safety at work of their employees. It could therefore potentially be argued that it is reasonable to make vaccination compulsory on health and safety grounds: either for certain roles or for the whole workforce. However, for several reasons this is a difficult position to take:

• People can't physically be compelled to get a vaccine – it requires consent.
• Unlike in some other countries, the government has not legislated to make COVID-19 vaccination mandatory.
• There are unfair dismissal and discrimination risks associated with this approach, as highlighted below.

Can we dismiss an employee for failing to be vaccinated?

If you have a mandatory vaccination policy and an employee fails to get vaccinated you might consider dismissing them, on the basis that they have refused a reasonable management instruction. There are, however, relatively strong arguments as to why this could be unfair: 

• Requiring an employee to take a vaccine is arguably an unnecessary invasion of privacy – particularly if there are less invasive means of lowering the risk of coronavirus. In terms of the Human Rights Act, UK courts and tribunals are required, as far as possible, to interpret legislation in a way that is compatible with the European Convention of Human Rights (Article 8 – right to respect for private and family life); and it's unlawful for public authorities to act in a way which is incompatible with the Convention.
• There are potentially legitimate reasons as to why employees might not be prepared to take the vaccine, for example they believe that it has not been tested sufficiently, or that they could have an adverse reaction to it.

This point has not been tested yet and tribunals won't be considering the issues until the end of 2021 at the earliest. The relative strength of the arguments will depend on the circumstances, including the relevant sector / nature of the workplace (it is more likely to be viewed as reasonable in the care sector, for example); the reason for wanting employees to be vaccinated (e.g. to protect staff and customers, or to allow business travel abroad); whether the employee's reasons for refusing the vaccine are legitimate; and whether there are any alternatives such as redeployment. 

Even if the view is that it is unfair to dismiss someone for refusing to be vaccinated in itself, a dismissal might nevertheless be fair if the reason for the decision is that it is too dangerous to allow the unvaccinated employee into a particular setting - either for them or for others - and there are no alternative roles.

What are the discrimination risks associated with vaccination?

You could face objections to a mandatory vaccination policy from employees with certain protected characteristics, for example:

Disability discrimination: Employees with particular medical conditions might be advised, or choose, not to get the vaccine. If these conditions amount to disabilities under the Equality Act, pressure to get the vaccine could lead to disability discrimination claims.

Religion or belief discrimination: People with strongly held views against vaccination might argue that they are protected as having a philosophical belief. Whether they are will depend on the individual facts and circumstances. To be protected a belief must:

• be genuinely held;
• not just be an opinion or a viewpoint;
• relate to a weighty and substantial aspect of human life and behaviour;
• attain a certain level of cogency, seriousness, cohesion and importance;
• be worthy of respect in a democratic society, not be incompatible with human dignity, nor conflict with the fundamental rights of others; and
• have a similar status or cogency to a religious belief.

It has been reported that vegan employees, and employees of religions which forbid eating certain meat, could challenge vaccination based on having a protected religion or philosophical belief. However, according to the NHS website, the approved COVID-19 vaccines do not contain any animal products or egg. 

Age discrimination: Vaccination may not be suitable, or available, for those of a certain age.

Pregnancy discrimination: The vaccine is not recommended for those who are pregnant, breastfeeding or planning to get pregnant.

Any dismissals or less favourable treatment (e.g. pay reduction, not allowing attendance at work on health and safety grounds) for failing to be vaccinated also risks discrimination claims from workers with relevant protected characteristics.

Having a 'one size fits all' vaccination policy risks discrimination claims unless that approach can be objectively justified as a proportionate means of achieving a legitimate aim (e.g. health and safety). Whether mandatory vaccination is proportionate will depend on factors such as how the policy is operated in practice; the impact on individual workers; and whether there are any less intrusive ways of reducing risk.

In practice

• How to deal with the question of vaccination will be a decision for each business to take based on a risk assessment. Think too about the impact of your approach on employee relations.
• Rather than trying to introduce a compulsory vaccination programme a more appropriate approach might be to encourage the take-up of vaccinations. Effective communication with the workforce and their representatives will be key. The messaging should emphasise the reasons for promoting vaccination; and outline any permitted exceptions.
• Whether vaccination is mandatory or encouraged, think about how to deal with anyone who objects. The risks associated with dismissal and less favourable treatment are clear. Therefore, instead could employees be required to continue to work from home / work with appropriate additional protective measures / be regularly tested / be redeployed to a non-customer facing role etc?
• Gathering evidence of vaccination will lead to data protection issues and the need for an impact assessment to determine, for example, what personal data is required and why (retaining records of who has been vaccinated for health and safety reasons is likely to be permitted); how it will be kept secure; who will have access to it, and for how long.

The vaccination issue is a tricky and developing area, and one we would recommend taking advice on. Please get in touch with a member of the employment and immigration team for more information.