Can an employer require an employee to take a COVID-19 vaccination?

With the COVID-19 vaccine rollout so far proving successful in the UK, the question is now, can an employer require their workers to get vaccinated? According to Alec Colson, head of employment law at Taylor Walton, it’s not that simple and there are legal hurdles employers must combat to support a ‘no jab no job’ policy.

Currently, there is no legal provision that permits an employer to require an employee to take one of the COVID-19 vaccines. However, some businesses are contemplating making the vaccine a condition of employment, in a bid to protect their clients and colleagues.

With more organisations expected to follow suit, it is important for decision makers to understand the legal position in this area before introducing any policies. Without careful consideration, they risk breaching strict rules or guidelines and creating larger issues later down the line.

Background
Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974), an employer must take all reasonably practicable steps to reduce workplace risks to their lowest practicable level. Additionally, under section 7 of the HSWA 1974, an employee has a duty to cooperate as necessary with the employer to enable it to comply with any statutory requirements including reducing workplace risks.

Moreover, employees will want to be reassured that they are working in a safe environment. However, this is unlikely to extend to employees being legally required to take the vaccine in all business sectors, and society will have to wait for further guidance from the government on what measures an employer may be required to take.

The meaning of “reasonableness” is likely to depend on the business sector of the employer and the services it provides. For example, the request of an employer operating in the retail sector for its employees to take the vaccination could be argued to be a ‘reasonable management request’, as they are in proximity with customers and clients.

Therefore, dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fairly, either on conduct grounds or for some other substantial reason.

The position in other sectors is likely to be less clear and, in any event, an employer should proceed with caution before deciding to dismiss. Employers will need to consider other available alternatives which may include moving the employee to another role involving less contact with clients or other employees.

Religion and belief
It is unlikely that an “anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. However, not all vaccines in production have released their list of ingredients, and it is possible that gelatine may have been used in some vaccines or in its production process and therefore, an employee with certain religious beliefs or vegans may have religious or philosophical grounds for refusing to take the vaccination.

Disability discrimination
If an employee has been advised by their doctor not to take the vaccine on medical grounds, an employer’s requirement to take the vaccine may amount to disability discrimination. Even if the employee is not disabled, a tribunal may find that the request to the employee to go against medical advice is an unreasonable request in any event.

An employee’s fear of needles (trypanophobia) may also amount to a disability and therefore the employer would need to consider whether it could provide alternative working arrangements.

Pregnancy and maternity discrimination
Public Health England advice states that: “Women should be advised not to attend for vaccination if they are, or may be, pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine.”

Therefore, a requirement to take the vaccine as a condition of employment for a pregnant employee, or an employee planning a pregnancy, is likely to amount to sex discrimination, pregnancy/maternity discrimination.

To some employers, the decision to make the COVID-19 vaccine compulsory may seem like a reasonable request to keep people safe. However, it is not that straightforward. Legal challenges to overcome start to appear and individual circumstances will need to be considered before any policies are introduced.

As the vaccine rollout steps up, it is crucial that employers familiarise themselves with the latest public health guidance, so they can tailor pandemic policies that are appropriate. The arrival of the vaccine will come as a huge relief for everyone, but the pandemic story is far from over and businesses should operate with caution in the months ahead.

www.taylorwalton.com