Can an employer make Covid19 vaccine mandatory in the workplace?
Employers seeking to enforce compulsory vaccination policy need to be very cautious as the matter has yet to be determined by the Employment Tribunals on the grounds of legality. Such a policy can be deemed intrusive and could result in a claim against the employer on the grounds of constructive dismissal or unfair dismissal.
Government guidance does not compel anyone to take the vaccine it is only a recommendation they do. There will be individuals for whom the vaccine is suitable such as those with medical conditions and allergies. Employers acting against employees who cite this ground could face a claim for disability discrimination based on less favourable treatment due a medical disability.
Equality Act 2010
Employee’s must also cite their objection as a personal religious belief, but the Government guidance sates the vaccine is suitable for individuals of all religious faiths. Some employees will cite they have alternative beliefs that does not accept vaccination. It remains for the Employment Tribunals to give clarity if such beliefs will be covered by the Equality Act 2010. Several criteria must be satisfied under the Grainger test before a belief is protected by the legislation. These include the belief is a belief and not an opinion. The belief must be substantial and part of human life. It must be serious and consistent. It should be a belief which can be respected by a democratic society and not conflict with the basic rights of others. Employees who reject vaccination must demonstrate their belief can be meet these criteria.
The Employment Tribunal may struggle to the determine if cultural beliefs fall within the Grainger test. It has been noted by the British Medical Journal that some ethnic groups have little trust in the Government due to systematic racism they face, and this has resulted in the resistance to vaccination uptake amongst some ethnic minority groups in the United Kingdom.
Lateral Flow Tests
Employers must uphold their duty under the Health and Safety at Work Act 1974 to protect staff and look after their welfare. Employers can, therefore, on a non-compulsory basis encourage staff to take up the vaccine and undertake regular testing using lateral flow tests.
The Government advice from 19 July is that those employees who have had two vaccinations can now return to the workplace. Employers should however be mindful of interpreting as a blank instruction for all employees to return to the workplace. There will remain a duty to risk assess the workplace under the Health and Safety at Work Act 1974 and to make reasonable adjustments for disabled employees under the Equality Act 2010. Employers should keep an eye on the latest weekly Government Covid 19 advice as this can change and they should now also consider their winter Covid 19 and Flu plans. Home working should remain as a possible option where an employee tests positive for Covid.
This article serves only as guidance only and legal advice. If you have a legal enquiry, please contact the Quest HR advice line on 0333 2407 208.
