CAN AN EMPLOYER FORCE AN EMPLOYEE TO BE VACCINATED?

19 January 2021 | Shabir Karatella

The simple answer is NO. The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be forced to undergo any medical treatment including vaccinations. To do so may give rise to human rights issues and other employment claims.

Can a business force an employee to be vaccinated?

In theory, if the employer has a wide and thorough medical examination clause in the contract of employment, they could rely on it to compel employees to be vaccinated. However, this may be very risky as there has to be an informed and voluntary consent of the employee.

If employees were compelled by their employers to be vaccinated, apart from human rights issues, there may be criminal implications such as trespass to the person, assault, unlawful injury, and battery. Additionally, as most vaccines contain pig derivatives, religious issues arise.  Taking an anti-vaccine stance, animal rights beliefs or being a vegan, could also amount to a philosophical belief, a protected characteristic and therefore protected under the Equality Act 2010. Careful consideration must be given to avoid such issues.

Can an employer indirectly compel vaccination?

Employers could use indirect measures to force staff to be vaccinated. This could include refusing entry to the building or certain parts of the building or prevent them from carrying out certain roles which can involve close contact with colleagues or service end users. Employers could resort to invoking disciplinary procedures against those who repeatedly and without just cause refuse to be vaccinated. These measures should be taken after obtaining suitable legal advice and careful consideration of the above factors. If the employee’s refusal is due to a disability or other protected religious or philosophical belief covered by the Equality Act, such actions by the employer may be treated as repudiatory, leading to claims for constructive dismissal and/or direct/indirect discrimination claims. It is essential that employers adopt a conciliatory approach, and to educate their workforce to enable them to make an informed decision.

The above sanctions by the employer against an employee who refuses to be vaccinated may be justified on health and safety grounds. Under the HSAWA S.74, an employer owes a duty to safeguard the safety of their staff. Where employees are required to work with colleagues in close proximity or they look after elderly and other vulnerable people, it can be argued that vaccination is required to ensure that employees are themselves protected, so they cannot infect the weak and vulnerable. For example, it could be argued that requiring a care home employee to be vaccinated, and disciplining them if they refuse, is reasonable because of the high-risk nature of the work – ultimately justifying disciplinary action or even dismissal.

However, such action should not be taken lightly, and certainly not before having obtained legal advice. It is a case of balancing health and safety, medical benefits, human rights, personal beliefs, and the business needs. Does the vaccine suppress symptoms or reduce the risk of transmitting it? Is it really necessary in addition to all the other social distancing and hygiene procedures in place? It is the answers to these questions that will determine the reasonableness and fairness of the employer’s actions. Where the vaccine suppresses the condition, then disciplinary action could be justified on health and safety grounds especially if their refusal is unreasonable. It is crucial that employers obtain suitable HR advice before making any decisions or taking any formal actions.

If this article raises any queries please call us on 01455 852028.

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