Insights
Insights 23.2.22 Author: Andreja Okamgba

Mandatory Covid-19 Vaccinations

Insights 23.02.2022 Author: Andreja Okamgba

Should employers insist on employees getting a vaccine? Can an employer dismiss those who haven’t taken up the vaccine? Can getting a vaccination be made a requirement for continued employment, and can it be a condition in a job offer for a newly hired employee? These are all important questions that will make it to many businesses’ agendas in 2022, explains our HR Consultant, Andreja Okamgba.

Background

At present, there are no mandatory vaccination schemes in the UK. The Public Health (Control of Disease) Act 1984 specifically prevents Ministers from creating new rules which would make vaccines mandatory. This means that any mandatory vaccination scheme would require Parliament to pass a new law. In many other countries certain vaccinations are mandatory, and not just recommended, for example Italy has made vaccines against 10 diseases compulsory for children enrolling in state-run schools. An increasing number of countries are also making Covid-19 vaccinations mandatory for all adults or certain sections of the population decided by age or occupation.

“No jab – no job”

Recent headlines of “no jab – no job” and the introduction and subsequent reversal of specific rules for the care sector and health care workers have further increased the debate about vaccinations as a condition of employment, and whether employers can force employees to receive the vaccine. Other countries have introduced mandatory vaccination requirements and challenges are slowly starting to take a legal position on this topic. The courts haven’t fully considered whether rules requiring a vaccination are lawful yet and the most common challenges used in courts are:

1. Human rights

Where the intention is clearly to protect life, it is likely to be difficult to challenge any mandatory vaccination rules on human rights grounds. A French court ruled that the vaccination obligation did not cause serious and manifestly illegal harm to individuals’ physical integrity stating that: “it seems somewhat extreme to describe the suspension of the contract of an employee who freely refuses to comply with an obligation to undergo vaccination (which has been imposed in the general interest and which comes with the best pharmacological guarantees), as ‘degrading treatment’.”

As no mandatory vaccination scheme exists in the UK, nobody can be given a penalty such as a fine or a criminal sentence for refusing to take a vaccine. It also means that one cannot be physically forced to take the vaccine. Any requirements to be vaccinated in order to continue to work don’t technically make the vaccines mandatory. From a legal standpoint, the courts will likely see this as proportionate where the reasons behind the rules are carefully considered and only introduced to protect life.

2. Discrimination

Similarly, any vaccination rule introduced to protect life in context of the Covid-19 pandemic will likely be considered lawful under the anti-discrimination legislation. The question to be answered will be whether the rules imposed were proportionate to the aim of protecting public health. A French court specifically stated that “the vaccination obligation imposed on professionals in caring and non-caring roles in public health establishments does not create any discrimination between vaccinated and non-vaccinated workers which would be contrary to the principle of equality”.

Can employers require employees to be vaccinated?

Any blanket policy of mandatory vaccination for employees to enter the workplace, without any specific risk assessment underpinning this decision will likely be unlawful, attract significant negative publicity and cause issues with staff retention and recruitment.

ACAS (Advisory, Conciliation and Arbitration Service) advises that staff are encouraged and supported to be vaccinated without making this being made a requirement. Examples include offering staff paid time off to attend vaccination appointments and paying the usual rate of pay where staff are off sick with vaccine-related side effects.

However, there may be circumstances where a vaccination will be a requirement. For example, an employee may need to be vaccinated to meet entry requirements of another country if travel is integral to their role. Employers will need to assess employees’ rights in these circumstances and base any requirement on a careful legal risk analysis. Areas to be considered include:

  • Potential breach of contract leading to a constructive dismissal claim
  • Discrimination claims based on age, disability, pregnancy or maternity, sex, race or religion/belief where these characteristics are linked to the reason for not getting the vaccine
  • Data protection – vaccination status will amount to a “special” category of data subject to very strict regulations under the data protection legislation 

Your action plan

  • Consult with employees and any representatives about any policies you are planning to introduce
  • Revisit your data protection policy and clarify how it applies to the vaccination status data
  • Carefully think about all the risks and benefits of any vaccination requirements and consider the balance

What next?

If you require further information on this topic or would like to discuss this matter in more detail, please get in touch with our HR Consultancy team.