Whilst an employer cannot physically stab you in the arm with a vaccine (this would be a criminal offence!) it could be argued that an employer requiring an employee to have a vaccine would be reasonable.
Of course, any employer deciding to insist on requiring their employees to have a vaccine should take legal advice because there is a significant risk that claims could be made against the employer, especially if employees who refuse will then face disciplinary action or dismissal as a result.
Employers must ensure that employees are safe in the workplace. They may say that the refusal to follow their request to get the vaccine could be a failure to follow reasonable management instructions. This would be particularly relevant where employees were not able to work from home or socially distance in their work environment. If the employee was, for example, a healthcare worker or someone who worked with vulnerable people the argument that the vaccine was required would be stronger again. If, however, the employee could and was able to work from home having little to no contact with other employees or clients, the argument for a mandatory vaccine being reasonable would be much weaker. As you can see, this would need to be dealt with on a case-by-case basis and the reasons for refusal would need to be carefully investigated.
An employer may decide to take the position that if an employee refuses to get the vaccine then they will dismiss them. There is nothing to stop a dismissal from taking place but an employee, who has been employed for more than 2 years, may then be able to bring a claim for unfair dismissal. The employee could argue that the dismissal was unfair and unreasonable because unless it is a term of an employees contract, employers can only request that the employee gets the vaccine and a policy that says ‘vaccine or dismissal’, would effectively be forcing the employee to have the vaccine. Employees may also say it is unfair because their employer has not looked at any alternatives for them, such as a different role or working from home. They could further argue that such a policy would breach their rights under Article 8 of the Human Rights Act 1998.
Employers might also have to deal with situations where employees are refusing the vaccine for legitimate reasons such as pregnancy or disability. If the employer dismissed someone in this situation then the employee could be able to bring a claim for discrimination under the Equality Act 2010. It is important to note that being worried or hesitant about having the vaccine would not be a protected characteristic.
There is nothing stopping employers from encouraging their employees to get vaccinated. This could be in the form of encouraging their employees to get the vaccine when offered it by the NHS or by offering to pay for their employees to get the vaccine privately, though this is not anticipated to be something that will be available in the UK to allow free and fair access to the vaccine.
If employers do want to require their employees to have vaccines, they should consider this on a case-by-case basis. It is also not as easy as simply writing a vaccine clause into all new employee’s contracts, blanket vaccination policies could be indirectly discriminatory if they cannot be justified. There will be different circumstances to take into account for each employee and employers will need ensure they have looked at all the alternative options for their employees prior to dismissing them or refusing to hire them.
Jaimie Whiteley- Employment Solicitor- Gamlins Law Ltd