As the government’s national COVID-19 vaccination programme is rolled out, you may be wondering whether you can require your employees to get vaccinated.
Keep reading for guidance on how to encourage uptake of the COVID-19 vaccination whilst avoiding any legal pitfalls.
The legal implications of requiring employees to have the vaccination
As employers, we are all concerned about the risk of workplace transmission of COVID-19 for both our employees and customers. The roll out of the national vaccination programme provides a much anticipated opportunity to reduce that risk. Employers will undoubtedly be keen for their employees to receive the vaccination. However, employers who operate a mandatory vaccination policy for employees may potentially face legal challenge in all but the most exceptional circumstances.
It’s worth noting that at this stage (January 2021) the UK government is not making the vaccine mandatory for its citizens, nor is it making vaccinations for its own employees mandatory (for example NHS workers). Furthermore, gov.uk suggests further research is needed to determine whether the vaccine will reduce transmission.
Employers who require employees to consent to the vaccination or who take disciplinary action (including dismissal) as a result of an employee’s refusal, may face one or more of the following legal challenges:
Unfair dismissal:
An employee who has a reasonable rationale for their refusal to get vaccinated is likely to be successful in a claim for unfair dismissal.
Unlawful discrimination:
If the employee’s refusal to consent to vaccination is due to a protected characteristic such as race, religion, disability or pregnancy, a disciplinary sanction is likely to amount to unlawful discrimination.
Breach of Article 8 of the Human Rights Act 1998:
Requiring an employee to receive a vaccination may breach the right to respect for a private life.
Personal injury:
An employee may bring a personal injury claim if they are expected to have a vaccination and they experience an adverse reaction.
While employers are required under the Health and Safety at Work Act 1974 and the Coronavirus Act 2020 to provide a safe working environment, this must be balanced with the obligation to treat employees fairly. Employers should consider alternative ways to reduce the risk of workplace transmission of COVID-19.
Our guides ‘Coronavirus (COVID-19): a guide for employers’ and ‘COVID-19: Preparing for a return to the workplace’ provide useful tips and information on how to ensure workplaces are COVID-secure.
Are there any exceptions?
Some employers, such as care homes, are facing exceptionally high levels of risk due to COVID-19, and would be in a stronger position than most organisations to argue that a mandatory vaccination policy is reasonable. Nevertheless, an employee’s circumstances and rationale for refusal must always be taken into consideration, and alternative options explored. Also relevant will be the terms of the employment agreement, and whether a thorough medical clause exists.
As there is likely to be a very high threshold to meet to justify a mandatory vaccination policy, employers considering this approach are strongly advised to seek expert advice.
How might employees be feeling?
The coronavirus pandemic has impacted all of our lives in a significant way and many employees will be experiencing stress or anxiety. Our guide ‘Employee Engagement in the ‘New Normal’ provides practical tips on how to support employee wellbeing.
While most employees will choose to have the vaccination, there will be those that decide not to. There may be a variety of reasons for this decision. For example, the employee may be concerned about an adverse reaction, or may have a phobia of needles. There could be religious or cultural reasons why someone may choose not to get vaccinated, or the individual may hold strong anti-vaccination beliefs.
There will also be sections of the population who are advised not to get vaccinated, for example those that are pregnant.
Employees may be nervous or worried about discussing their views or circumstances with you, and could be concerned about reactions from colleagues.
In addition, you may find that your employees have strong opinions on the COVID-19 vaccination, which could lead to heightened tensions in the workplace.
Therefore, it is important that employees feel supported and are treated with respect, regardless of their beliefs and choices.
Tips for communicating with your employees about the vaccination
While a mandatory vaccination policy is unlikely to be lawful, you can encourage employees to have the vaccination.
You can do this by:
- Explaining the reasons why you believe the vaccination would be beneficial.
- Providing factual information to help employees make an informed decision. For example, you could share links to government and NHS information.
- You can encourage employees to discuss any questions or concerns they may have.
- You may choose to offer paid time off work to attend appointments.
However, it is important that employees do not feel pressurised to have the vaccination, and that you are respectful of an individual’s choice. Confidentiality should be maintained at all times.
The benefits of introducing a Covid-19 Vaccination Policy
A Vaccination Policy or letter is a useful way of communicating an organisation’s stance, and of sharing relevant information with your employees.
A Vaccination Policy may include:
- The organisation’s stance, ie that the vaccination is encouraged but not required, and that individual choice is respected.
- Access to government and/or NHS information on the COVID-19 vaccination programme and roll out, to enable employees to make an informed decision.
- Information about leave entitlements to attend appointments (paid or unpaid) and how to apply for leave.
- Behavioural expectations, ie that all employees should be treated with respect, and should be free from bullying and harassment. The complaints procedure and potential disciplinary outcomes should be outlined.
- Contact details for the HR team or relevant manager.
To support you, Client Members can access a template Vaccination Policy and template Vaccination Letter on the client member portal. These templates can be tailored to suit your organisation, please let us know if you would like support with preparing and using these documents.
What can we do to help?
If you would like advice on managing the risks of COVID-19 in your workplace, please contact our team on 0330 223 5253 or office@fitzgeraldhr.co.uk. We would be delighted to help you.
We hope you found this article useful. You may also find the resources below helpful.
