The government has now set out guidance as to the proposed easing of the lockdown rules, whilst the immediate advice is still to work from home if at all possible, within very few months employers will be asking their staff to return to the workplace. The frantic search for a vaccine capable of addressing Covid-19 has been at the forefront of the fight against the pandemic and the question of whether employers can insist on their employees being vaccinated before their return to work is now a key question for some businesses.

Employment law is not crystal clear on this question; an employer has a duty to ensure the safety of their employees and all those with whom they interact during the course of their work.  Therefore, there may be a case for insisting that all employees are vaccinated.  The best examples of this are those working in care homes and the healthcare sector where the risk of Covid-19 infection is exponentially higher for residents, patients and workers.  An employee may be at risk of dismissal for refusing to be vaccinated.  Also, colleagues could contend that their workplace is unsafe due to the presence of unvaccinated staff and refuse to return to the workplace.

However, the Advisory, Conciliation and Arbitration Service (ACAS) advises caution and suggests that employers could step into the quagmire of discrimination if they are not careful.  Employers should not take a "blanket" approach and should listen to an employee's reasons for refusing to accept the vaccine. If the reason appears to be unreasonable then the employee could be disciplined. However, considerations when deciding whether the reasons are valid or whether disciplinary action should be taken are:

  • Is the vaccine is necessary for the person to do their job?
  • Is the reason for not wanting the vaccine protected under the Equality Act 2010?
  • Do you have a vaccine already policy in place?

The Equality Act 2010 lists the protected characteristics under section 4; a worker should not be subject to any detriment if the reason for refusing the vaccine specifically falls into one of the protected characteristics and ACAS warns that should this be the case and a  worker is dismissed they could bring a claim in the Employment Tribunal.  Employers are obliged to make adjustments for workers with disabilities and making an exception with regard to the vaccine could legitimately be deemed to be a "reasonable adjustment" and would avoid a potential claim and the Employment Tribunal.

If you do feel that having your workforce vaccinated is essential for your business, there are certain factors to consider:

  • Consent: if you want to amend an existing contract with your employee(s), you must obtain their consent. If you do not, the employee has the right to terminate the contract, seek compensation in the Employment Tribunal. 
  • New vs current employees: from a practical standpoint, trying to amend existing contracts of long-standing employees might encounter resistance and dissatisfaction. As far as new starters are concerned, this stipulation could be a more reasonable proposition. 

If an employee refuses on religious grounds, this would fall under the Equality Act of 2010.  However, ACAS states that if it was found to be the case that they have 'a viewpoint based on the present state of information available' leading to the opinion that vaccines should not be taken, this is likely to fall short of the threshold required for them to be afforded protection by discrimination law due to their belief.

With regard to health, the Pfizer vaccine is not recommended for those with a history of severe allergic reactions. However, with other vaccines available that do not appear to have this disadvantage, it would questionable as to whether an employee would be able to successfully avoid vaccination. 

Giambrone's expert employment law team believe that the robust approach that Charlie Mullins is taking with his staff, "no jab no job", is risky and may lead to the Employment Tribunal regardless of the fact that the policy will protect both the workers and customers.  Our experienced lawyers' recommendation is to discuss the reasons your vaccine reticent employees are unhappy about accepting vaccination it may be possible to resolve the issue. 

For more information on dealing with the vaccination issue please click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.