This week we have seen increased reports in the media of people refusing the COVID-19 vaccination, including reports of around 20% of care workers having refused the vaccine. With this in mind, we consider whether employers can insist on their employees receiving the vaccination and the potential legal ramifications of introducing a mandatory policy.

Can employers insist employees receive the COVID-19 vaccination?

A recent employer survey revealed that 23% of those surveyed intend to make COVID-19 vaccination mandatory for their employees, but what are the potential repercussions of introducing such a mandate?

With the roll out of the vaccination programme now well under way, businesses will no doubt be keen to see their employees vaccinated in the hope that this will reduce workplace transmission and absence levels, thereby protecting business continuity and getting back to pre-pandemic productivity levels as swiftly as possible. However, hopes of a return to “normality” may be hindered where employees are hesitant about receiving the vaccine.

Employers have a duty to ensure the health, safety and welfare of all employees whilst at work. As a minimum, employers should therefore actively encourage employees to take up the vaccine, however some employers may wish to go further by making vaccination mandatory.

Can an employer introduce a mandatory vaccination policy?

In theory there is no reason why an employer could not introduce a contractual requirement for employees to accept the vaccination (subject to the usual principles governing contract variations). However, in all cases, instigating a contractual mandate for COVID-19 vaccination will require careful consideration and employers should still exercise caution in how they ultimately deal with an employee’s refusal.

Potential discrimination claims

Whilst vaccine hesitancy itself is not a protected characteristic under the Equality Act 2010, employees may refuse the vaccination due to an underlying characteristic which is protected. Some examples of these include:

• Disability – an employee suffering from immunosuppression who declines the vaccination because of its untested effect on that demographic.
• Pregnancy – a pregnant employee who follows the current advice that there is insufficient evidence to recommend routine Covid-19 vaccination during pregnancy.
• Religion or beliefs – an ethical vegan might refuse the vaccine because of objections to animal testing or the inclusion of chimpanzee adenovirus vectors within the vaccine itself.

If mandatory policies are introduced which do not allow for potential exceptions to deal with such objections, an employer may be liable for claims of indirect discrimination. Whilst such claims can be successfully defended if the employer can show it had good reason for requiring the workforce to be vaccinated (one potential example might be those employers operating in the care sector), the prospect of being able to justify potentially indirectly discriminatory practices will vary in each case.

Can an employer discipline or dismiss an employee for refusing COVID-19 vaccination?

Current ACAS guidance states that if an employer believes an employee’s reason for refusing the vaccination is unreasonable it could result in disciplinary action. However, employers should still carefully consider the circumstances of each refusal on a case by case basis, not least as the employee’s reason for refusal may be linked to a protected characteristic. Failing to consider the basis of an objection could lead to claims for discrimination or, for those with more than 2 years’ service, constructive unfair dismissal.

Should an employer ultimately decide to dismiss an employee for refusing to be vaccinated, they will need to show that the reason for dismissal was a fair one. Until there is more readily available data around the effect of the vaccine on transmission rates and sickness levels, employers may struggle to demonstrate the reasonableness of their decision to dismiss.

Whilst it will be some time before this type of claim is tested, it seems likely that a tribunal might be sympathetic towards an employee disciplined or dismissed for refusing the COVID-19 vaccination. Based on the medical data currently available, unless the employer’s arguments are extremely compelling and they can demonstrate all alternatives were considered before proceeding to dismissal, we anticipate that a tribunal will be slow in finding that dismissal is reasonable on the basis that the employer considered it necessary for their business.

Any employer seriously considering making vaccination compulsory should therefore be vigilant about the potential consequences of doing so. Failing to have regard for an employee’s individual circumstances may amount to discrimination. Moreover, the reasonableness of disciplining or dismissing an employee for refusing the COVID-19 vaccination will require careful review.

Given that these issues will inevitably vary from business to business and will continue to evolve, employers should seek legal advice before taking any action for an employee’s refusal to take up the COVID-19 vaccination.

If you would like to discuss anything in this article please contact Rebecca Fielding.