Is it a ‘reasonable instruction’ to ask staff to take the vaccine?
In 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. Our view is that it depends on a number of factors – the most important of which is whether vaccination will protect other members of staff or service users. Both the government and the WHO advise that vaccinated people are much less likely to transmit the virus to others.
On this basis, it’s more reasonable to instruct frontline staff to be vaccinated but 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.
As vaccination rolls out, it is time to think about your approach and give your staff advance warning of it.
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. Some people are advised against having the vaccination for clinical reasons.
Staff who are worried about having the vaccine should be able to discuss their concerns and signposted towards reliable, impartial information before any action is taken 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. A small number of religious groups disapprove of vaccinations; vegans may disapprove if 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.
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. Legal advice is advised.
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.
What has the government said about vaccination?
There is no legal basis the government can rely on to force people to be vaccinated. 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.
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).
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.
However, to reduce the risk of catching or spreading Covid, managers should encourage staff to take the vaccine when it is offered to them, while continuing with recommended COVID infection control measures.
By Joanne Moseley, Practice Development Lawyer (Employment) – Senior Associate, Irwin Mitchell LLP