Can employers make COVID-19 vaccinations compulsory?

The government have already made the vaccine mandatory for staff in the care sector, with workers needing to be double-jabbed by 11 November 2021 (unless they qualify for an exemption). Following the recent closure of government consultation into making vaccination a condition of deployment for frontline workers in health and care settings, the health secretary has stated that the government is also “considering” making the vaccine mandatory for NHS staff.

For all other employers, the position as to whether they can make Covid vaccinations compulsory for their workers and the risks involved in doing so, could still be somewhat unclear.

What does the law say?

Businesses can by all means encourage their employees to be vaccinated, for example by offering paid time off work to attend a vaccination appointment. However, there is no legal right to make employees have a vaccination against their will and to do so could invite criminal charges.

This means that in practice, mandating that existing employees are vaccinated by changing their existing contracts or by implementing a mandatory vaccination policy must be approached by organisations with extreme caution and is something that senior leadership teams need to carefully consider.

When it comes to mandating that new employees are vaccinated, although the legal risks are less than when compared to existing employees, it still needs serious consideration.

The nature of the business, including the degree of contact that employees are expected to have with members of the public, could dictate that having the vaccine is a ‘reasonable instruction’ by the employer, or included as part of their contractual obligations.

In industries where there is a lot of face to face contact with potentially vulnerable members of the public, leadership teams could argue that staff refusing to be vaccinated would put vulnerable customers at risk. The same argument would not necessarily work in a different sector, where employees do not come into contact with people who are particularly at risk from the virus, or where they have been successfully working from home, without contact with colleagues.

If an organisation does issue a ‘reasonable instruction’ for staff to be vaccinated, it is vital that they engage and communicate clearly with all employees about why they are making the instruction.

Be mindful of potential discrimination claims

The main concern for senior leadership teams thinking about implementing a mandatory vaccination policy should be around the risk of indirect discrimination. For example, making it a blanket policy or contract condition that every staff member has to be vaccinated could indirectly discriminate against people with certain protected characteristics, like a religion that prohibits vaccinations, they object to an ingredient in the vaccine or those with a medical condition that qualifies as a disability under the Equality Act 2010.

This means that the employer would have to have a strong and well thought out argument that vaccinations are required for a legitimate business reason – in this case the health and safety of the work force or its customers – and the insistence on a vaccination policy is a proportionate means of achieving that legitimate business aim. However, in relation to using mandatory vaccinations to ‘control the risk’ for health and safety purposes, there are likely to be other less invasive methods that can be implemented (e.g. regular Covid-19 testing, mandatory social distancing, mask wearing and hand washing facilities). It could, therefore, be difficult for businesses to prove that there were no less discriminatory means other than mandatory vaccinations to achieve the same objective.

Employees refusing vaccination

It is important for employers to be aware that expectant mothers, statistically, are among those not accepting the opportunity to receive the vaccine. Less than 30% of pregnant women have received their first dose of the vaccine and as such are now making up 1/5 of those in hospital with Covid-19. This is due to scare mongering, false information and lack of research, as vaccines are now considered to be completely safe for those who are pregnant. There is still some confusion among expectant mothers as to whether they should be receiving the vaccine as pregnancy is still regarded to be a medical exemption. Pregnant women do not need to apply for a medical exemption ‘NHS COVID Pass’ if they have a ‘MAT B1’ certificate. Government guidance however, promotes the uptake of the Covid-19 vaccine for pregnant women and has done so since April 2021.

For those employers who do issue a ‘reasonable instruction’ for vaccination or make it a contractual obligation, then if an employee refuses, there could be grounds to fairly dismiss them. Of course, the usual formal processes around dismissal would still need to be followed here, in terms of issuing formal warnings.

However, employers need to ensure they are very careful if taking this approach. Each case would need to be considered on its individual facts and circumstances, with fair reasons for the dismissal carefully deliberated and a consistency of approach between cases. It must be reasonable for the employer to have a compulsory vaccination policy and it must also be reasonable to not make an exception for the reasons put forward by the employee. Employers also need to look at alternatives to dismissal, for example remote working or changes to a role. Each of which could be regarded as a more reasonable alternative than dismissal.

This is a very new area and is something that many organisations will be grappling with over the coming months. What is clear, is that whatever approach a business takes, it needs to be discussed at board level and due consideration needs to be given to the aspects discussed above before any policy is introduced.

For ways to encourage staff to get the vaccination, ACAS have provided the following suggestions to employers:

• sharing government vaccine health information with staff
• offering paid time off for vaccination appointments
• paying staff their usual rate of pay if they’re off sick with vaccine side effects, instead of Statutory Sick Pay (SSP)
• not counting vaccine-related absences in absence records or towards any ‘trigger’ system the organisation may have
• arranging informal conversations during work time between staff who have had the vaccine and anyone who’s not sure about getting it

If you would like any further assistance and advice on vaccinations in the workplace, please do contact us on 01892 510000 or email info@ts-po.co.uk.