Trying to force vaccinate your employees is unlawful, right?

Some employers are likely to be in favour of all their employees being vaccinated, but not all employees will be as keen.  There will be workers who are concerned about the vaccine and would prefer not to have it, for various reasons.   What happens in this situation?  Can an employer (or indeed the Government) force them to have the vaccine? Is the “No jab, no job” threat a hollow one or does it have teeth?

The government have specifically advised that certain groups of individuals should get the vaccine, such as if you are a frontline healthcare worker, frontline social care worker, or work in a care home for the elderly for example. These recommendations may be relied upon by employers to justify why they would want their employees to have the vaccine. However, employers cannot rely on the Government making vaccination compulsory.  The Government has no legal powers to do this.

Acas guidance suggests that employers should support staff in getting the vaccine but cannot force them to be vaccinated. However, it does acknowledge that it may be necessary to make vaccination mandatory in some job roles, such as where someone needs to travel overseas to do their job.

Unfair Dismissal?

It will be up to individual employers to decide whether they insist on vaccination, and what the consequences of refusal will be.  For anybody having visions of their employer physically forcing a needle into their arm, that would be a criminal offence (battery).  However, the kind of force the employer might apply is forcing the employee into a difficult choice – have the vaccine or be dismissed.  Can the employer do this?  The short answer is yes.  There is nothing an employee can do in most circumstances to stop an employer from dismissing them, for whatever reason.  The next question however, is what can an employee do about that, as the employee would potentially have a claim to an employment tribunal against the employer, for unfair dismissal.

Reasonable?

Employees with less than 2 years’ service will not have any right to make a claim if they are dismissed for refusing the vaccine (except in some extremely limited circumstances).  For employees with 2 years’ service, they could make a claim, and a tribunal would have to decide whether the dismissal was unreasonable.  Such a decision by an employer could well be found unreasonable as:

  • Essentially, it is a way of forcing the employee to have the vaccine, but which falls short of forcing a needle into their arm, which a tribunal might struggle to justify
  • it is potentially in breach of Article 8 of the Human Rights Act and
  • vaccine refusers may have genuine and reasonable fears about receiving the vaccine.

Of course, this does not prevent the employee from being dismissed in the first place. A tribunal claim is an imperfect remedy that will take a long time, will not result in immediate reinstatement, and will not result in a windfall settlement for the employee.

Discrimination?

Being worried about having the vaccine is not a protected characteristic in itself, but if the employee’s reasons for not taking it are related to a disability, or for example, to their religion and/or philosophical beliefs, that might give rise to a claim that they have been treated less favourably because of their refusal. Therefore, in some circumstances it may be possible to bring a claim against your employer for discrimination under the Equality Act 2010.

Of course, there are some circumstances where having the vaccine would not be suitable and those individuals will be able to present that specific reason to their employer.

It is recommended that employees and employers communicate, and employees provide their reasons and explanation as to why they do not wish to have the vaccine. There are many!

Employers planning on imposing mandatory vaccinations within their workplace should consider the following;

  • there are a number of potential reasons why mandatory vaccinations could be indirectly discriminatory against certain protected characteristics.
  • Currently, vaccinations are not available for everyone. All individuals must wait their turn in order of priority to be offered vaccination. Only allowing vaccinated individuals to return to the workplace, for example, could amount to indirect age discrimination amongst other risks.
  • This could result in negative publicity for the employer
  • Consultations with workplace health and safety representatives may be advisable
  • There are data protection implications of requiring employees to provide information on their vaccination status and verifying its accuracy.
  • Mandatory vaccinations could be indirectly discriminatory against certain protected characteristics
  • Freely given consent is required for any medical intervention. If an employer attempts to force an employee be vaccinated, not only could it give rise to human rights concerns, but there could also be criminal implications. Forcing anyone to receive a vaccine injection under duress, under UK law, could constitute an unlawful injury. A vaccination requires an individual’s informed and voluntary consent

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