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Last week, the owner of Pimlico Plumbers said he wouldn’t offer a job to anyone who hasn’t been vaccinated. Given that the general working population haven’t been offered the vaccination yet, his approach is somewhat premature. But, the issue of whether employers can insist that staff take the Covid-19 vaccine when it’s offered to them is one that many are starting to grapple with. Jo Moseley examines the law.
1. What has the government said about vaccination?
There is no legal basis the government can rely on to force people to be vaccinated and people won’t be forced to have a vaccine if they don’t want one. Instead, it wants to persuade people that the vaccines are safe and that it’s in everyone’s interests to have one so that we can get back to some sort of normality. Clearly, if the government can’t legally compel people to be vaccinated, you can’t frog march your staff to the nearest vaccination centre either.
The government hasn’t published information about vaccinations which is directed at the general public. However, its guidance for frontline healthcare workers is instructive. This explains the benefits of being vaccinated for the individual (reduced chance of catching Covid or becoming seriously unwell if they do) and to the wider population (less likely to infect their friends, family and to the vulnerable people they care for).
2. Do the rules about health and safety at work provide any guidance about Covid vaccinations?
No. Section 2 of the Health and Safety at Work Act 1974 requires employers to take all reasonably practicable steps to reduce workplace risks to their lowest practicable level, but that doesn’t include procuring the vaccine and offering it to their staff (which would be extremely difficult anyway given the huge worldwide demand for the vaccines).
However, to reduce the risk of catching or spreading Covid to others at work, you can – and should – strongly encourage staff to take the vaccine when it is offered to them. That doesn’t mean that you should relax your efforts to make your workplace ‘Covid secure’ as, until the vast majority of the population are vaccinated, these precautions still remain the best way of protecting your staff.
3. Is it a ‘reasonable instruction’ to ask staff to take the vaccine?
This is important because, as a matter of contract and employment law, if you can establish that asking staff to take the vaccine is a reasonable management instruction and they refuse, you may be able to justify taking disciplinary action against them for disobedience.
Employment lawyers disagree about whether it is reasonable to ask, and take action against, any member of staff who refuses to be vaccinated. It depends on a number of factors – the most important of which is whether vaccination will protect other members of staff or people they come into contact with such as patients, school children, customers, service users etc? Both the government and the World Health Organisation (WHO) advise that vaccinated people are much likely to transmit the virus to others.
So, it’s not just about the amount of risk an individual is prepared to take in respect of their own health because choosing not to vaccinated affects other people. But the degree to which other people are impacted will vary. At the one end of the scale are health care professionals who are much more likely to be exposed to Covid and pass it to others. It’s therefore likely to be reasonable to instruct frontline staff to be vaccinated. But, it’s much less likely to be reasonable where staff have limited contact with others and there are other measures you can put in place to protect them.
The other issue to consider is that most people haven’t yet been offered a vaccine. The initial roll out prioritises ten groups in order of need. Even if the majority of your staff won’t be offered a vaccine for a while, we suggest you start to think about your approach and give your staff advance warning of it.
4. If we make a reasonable request for staff to be vaccinated, what can we do if they refuse?
That depends on the reason they give you for refusing. Although the vaccine is approved for use in most adults, there may be specific reasons why it’s not recommended for some people. The government acknowledges that ‘a very small number of people who are at risk of Covid-19 cannot have the vaccine – this includes people who have severe allergies’. Anyone who is advised not to have the vaccine will, obviously, be able to reasonably refuse to have it.
What about pregnant women? According to the NHS, most pregnant women won’t routinely be offered the vaccine unless they have a high risk of getting coronavirus because of where they work or, if they have a health condition that puts them at greater risk.
Staff may be worried about having the vaccine. The WHO refers to this as ‘vaccine hesitancy’ and, says this is one of the top ten threats to global health. Some groups – such as in Black or Black British Groups also appear to be more reluctant than others to be vaccinated. Discuss their concerns and signpost where they can obtain reliable, impartial information before taking any sort of action against them.
You may also have to consider whether individuals who refuse the vaccine are protected under the Equality Act 2010 on the basis of their religion or philosophical belief. There are a small number of religious groups that disapprove of vaccinations. Other groups – such as vegans – may disapprove of the vaccine because animal products were used in their development.
If your policy adversely affects people from a protected group (race, age, sex, disability and religion or belief being the most likely) it will potentially be indirectly discriminatory and, if challenged, you’ll have to justify your approach.
Anti-vaxxers subscribing to the myriad of conspiracy theories doing the rounds are unlikely to be protected because they have to show that their beliefs are worthy of respect in a democratic society.
5. Can we dismiss anyone who unreasonably refuses to be vaccinated?
Potentially, yes, provided you can show that taking the vaccine is a reasonable management request. You must consider alternatives first – such as permanent homeworking or moving them to a role where they don’t come into contact with many people and consider the reasons why they have refused.
You’ll also need to warn the employee and give them a final opportunity to comply before deciding to dismiss them, which should then be subject to a right of appeal. Dismissal should be on notice.
Given the potential to get this very wrong, we strongly recommend that you take legal advice before taking any action against someone who has refused to be vaccinated.
6. Can we insist that our staff tell us if they’ve been vaccinated?
That depends on whether asking them to be vaccinated is a reasonable management instruction. If it is, you’ll need this information to check compliance. Information about who has been vaccinated will constitute sensitive personal health data and you’ll need to comply with GDPR. The same will be true of information about who has not been vaccinated and why.
If you can’t demonstrate that asking staff to be vaccinated is a reasonable management instruction, don’t insist they provide you with this information. You probably shouldn’t even be asking staff to volunteer this information unless you have a good (lawful) reason for needing to know the answer.
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