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No Covid Vaccination, No Job...?

View profile for Desley Sherwin
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About a year ago, the hot topic in employment law was the new Coronavirus Job Retention Scheme that we all got to know and love as the furlough scheme. 

The hot topic currently is the debate about mandatory vaccination.

At the time of writing, almost half of the UK’s population has had at least one dose of the Pfizer or Astra-Zeneca vaccine. For those people, the decision to be vaccinated was made entirely voluntarily, but there has been some speculation that vaccination may become mandatory in some specific areas of work, with the result that, if an employee hasn’t had the vaccination, they will not be allowed to undertake that work.

The Government does have the power under the Public Health (Control of Disease) Act 1984 to make regulations to “prevent, protect against, control or provide a public health response to, the incidence or spread of infection or contamination” but such regulations cannot require someone to undergo mandatory medical treatment. Without new primary legislation, the Government cannot force UK nationals to have the vaccination.

Recent monitoring has identified signs of lower vaccine uptake in some ethnic minority and/or lower income groups. In mid-February 2021, this monitoring suggested that only two-thirds of social care staff and around 80% of NHS workers had received at least one vaccine, despite the vaccine being offered to all of those workers.  This is of particular concern to employers in high-risk sectors where their staff may be dealing with vulnerable residents or patients. Those employers have a duty to take care not only of those residents or patients but also of the health, safety and welfare of their staff.

Some employers have started to raise the question: Can we require our staff to have the vaccine and, if they refuse, prevent them from attending work or even dismiss them?

In the absence of any legislation allowing this, the short advice is NO, that really would not be a good idea.

The longer answer is that forcing an employee to have a vaccination without consent could expose the employer to criminal charges of assault and battery. Employers need to be mindful that some of their staff may suffer from severe allergies or have immune system disorders so they cannot be vaccinated. Additionally, the vaccine has not yet been fully tested on pregnant women or new mothers, or those suffering from long Covid. Forcing these and other staff to have the vaccine might expose the employer to the risk of a civil claim for compensation for personal injury should the employee suffer an adverse reaction.

From an employment law stance, mandatory vaccination requirements could lead to claims of a fundamental breach of contract by existing staff, leading to the employee resigning and bringing a constructive unfair dismissal claim to the tribunal.  Although this requirement in theory might be able to be introduced into the contracts of new recruits, the other concerns discussed below will still apply.

Claims may be raised of indirect or direct discrimination, where younger people who are waiting in line for the vaccination are prevented from attending work or taking up new vacancies through no fault of their own.  They may also raise a breach of human right (in relation to the Article 8 right to a private and family life).

Another concern of a mandatory vaccination policy is the possible adverse reputational damage that might be caused to the employer once its disaffected staff voice their displeasure on social media. This might persuade customers, suppliers, and current or prospective staff to vote with their feet and go elsewhere.

It remains of concern that the efficacy of the vaccination is not yet known: Although vaccination seems to reduce the chance of becoming ill if exposed to the virus, the extent to which transmission is reduced and for what period it remains effective, are still not fully understood.

Instead of imposing a mandatory requirement for vaccination, employers are advised instead to encourage their staff to be vaccinated by providing information and literature; holding informal question and answer sessions; encouraging staff to speak with HR or their GP to discuss their concerns, and offering paid time off to attend vaccination appointments.

As always if you have any questions please contact our Employment Law team.