December 31, 2020
The UK COVID-19 vaccination programme is underway and it’s only a matter of time before it’s available to the wider population. Although the vaccine could be especially beneficial for those who need to work on company premises some are still sceptical over the vaccine and may not wish to take it. This could potentially be problematic for employers if this prevents employees from fulfilling their roles. But can employers legally ask employees to be vaccinated?
In England and Wales, the Public Health (Control of Disease) Act 1984 gives the government the power to prevent, control and mitigate the spread of an infection. However, this act specifically prevents a person from being forced to undertake medical treatment, i.e. a vaccine. Therefore, to date there is no legal power to force the COVID-19 vaccine on the public and the government have confirmed that there are no current plans on making the vaccine mandatory.
There may be specific workplace grounds to mandate a vaccine as a condition of employment. However, employers must be careful in ensuring it is essential and not just part of COVID safe work arrangements. The bar for this is likely to be very high and limited to healthcare workers and those providing similar services.
As there is currently no real legal basis to have employees vaccinated, it is advised that employers do not force this. There are many different and complicated reasons why an employee may not wish to be vaccinated and an employer is opening themselves up to a whole host of litigation if they mandate vaccines. Also, dismissing an employee for refusing a vaccine may constitute unfair dismissal.
A question of liability
So if there is pressure or an obligation to receive the vaccine, what if something went wrong? Who would be held liable?
This is currently unknown at the moment. However, it is likely that, as long as the vaccine is recommended by the government as best medical practice, then the liability would not fall on the employer. It would fall on the government and drug manufacturers instead. Although, this may differ depending on the situation i.e. if your employer has acted unreasonably in pressuring you into taking the vaccine.
Unless the government mandate the vaccine, employers would have to seek a right under common-law contract and have clauses that require the vaccine, therefore offering legal consent. It will be interesting to see how and if these clauses can be challenged or upheld. There will no doubt be challenges of human rights violations so case law will be developed over time in this area.
An employer has a legal health and safety obligation to all staff so it may be possible for them to give extended ‘social interaction’ rights to those who have been vaccinated. It may also be possible to require those who are not vaccinated to undertake different roles or become home-based. But each situation will differ, and it is something that must be carefully thought out from a legal standpoint. Employers should be taking into consideration the thoughts and feelings of all employees.
If an employee feels they are treated less favourably they can make a grievance or discrimination claim (depending on the situation). For instance, if they are refraining from taking the vaccine due to a disability or religious reasons, these could be possible grounds to file charges against. However, if the employer reasonably mandates a vaccination (i.e. hospital staff), then failure to comply with that reasonable request may result in dismissal. This may become the case in sectors where social distancing and working from home are not readily available.
Keep up to date
Although there are no rules currently in place in the UK allowing employers to force their staff to take the vaccine – this could potentially change. For instance, in the USA employers are already able to enforce the vaccines in the workplace. Also, with global travel likely to require this too with CEOs of international airlines already arguing the necessity this could impact various jobs.
If the government make it impossible for to fly or attend public events without having the vaccination, this will assist employers to encourage employees to take the vaccination in order to perform their roles. However, employers may initially address these issues through less direct means such as denying any paid leave for those unvaccinated if they contract the virus or need to isolate or restricting and reducing benefits.
Laws are constantly changing to align with current trends and in anticipation of future needs and the protection of society. So, it’s important to stay up to date and follow the government guidelines very closely.
Disclaimer: This is a high-level overview of the legal position surrounding vaccines and in no way constitutes legal advice. If you are unsure about any legal issues surrounding the pandemic, it is essential you seek legal advice.