Refuse to have a COVID-19 Vaccine - What can employers do?

Initially the UK Government position appeared to be that the state would not require ‘vaccination passports’, but in recent days the media reports that the UK Government is re considering the question of ‘vaccination passports’.

We have seen in the news that the vaccination program has raised questions about how far employers can go to insist that employees are vaccinated as a requirement to continue in their role at work. Employers have queried whether they can impose disciplinary sanctions or even dismiss if an employee refuses what an employer considers a reasonable instruction that the employee be vaccinated.

There is currently no legislation or other legal basis in the UK that the vaccine should be mandated nor has the UK Government suggested that it be made mandatory at this time. 

The Public Health (Control of Disease) Act 1984 states that individuals cannot be forced to have medical treatment, which includes a vaccine, but rather gives magistrates the power to prevent the spread of the disease in other ways such as self-isolation.

In a discrimination law context, vaccination policies could potentially be objectively justified as a proportionate means of achieving a legitimate aim given the health and safety obligations upon employers to ensure a COVID 19 secure workplace and to maximise the number of employees who can attend work safely. Much will depend upon the way in which any compulsory vaccination policy is operated and the impact of any policy upon individual employees by disciplinary sanctions for refusal of vaccination.

There may be more scope for employers to insist that employees are vaccinated if it is critical to the business that employees are vaccinated such as in care homes, NHS or public facing essential worker roles, but even so this should be weighed against the reasons for any employee objections and whether disciplinary action including dismissal will be considered to be a reasonable sanction.

Whilst the Health and Safety at Work Act 1974 (HSWA) obliges employers to take reasonable steps to reduce any workplace risks and obliges employees to co-operate with their employer to reduce workplace risks, it would still seem unlikely that any disciplinary sanction and particularly dismissal, for an employee refusing to be vaccinated is likely to be fair at the moment.

But is this right? What happens when we are back to our daily lives as normal and an employee remains adamant that it is not safe for them to return to work because face masks are no longer being worn and the plastic perspex has been removed between the public and employee?

Given the early stages of the UK vaccination program each business considering a vaccination policy should consider its individual circumstances. This should include risk assessments to determine the impacts of employees refusing a vaccination and if additional measures can be put in place to mitigate this risk. Any employer considering dismissal as a sanction for an employee refusing to be vaccinated will probably need to show clear consideration of alternatives to dismissal and why, in a discrimination context, dismissal was a proportionate means of achieving a legitimate aim.

Perhaps employers should consider their business needs (and those of their clients/ customers) and health and safety obligations carefully before deciding on their approach to any vaccination policy and in the interim continue to provide employees with information whilst being mindful of personal choice.