January 26, 2021
The UK Government has made it clear that the vaccine will not be a legal requirement and the Public Health (Control of Disease) Act 1984 prevents a person from being required to undertake medical treatment such as vaccinations. Therefore, it is not possible for employers to force their employees to have the vaccine.
In some employment settings, such as a care home, school or the NHS, it may be viewed as reasonable for an employer to request that all staff be vaccinated; but how far could this extend? Those that work in other sectors such as hospitality and retail are also in frequent face-to-face contact with the public, so their employers may also feel it reasonable to ask all staff to receive the vaccine once they have the opportunity to do so.
We are therefore likely to see cases where employers consider dismissing staff who fail to comply with such requests. The implications of this will need to be assessed on a case-by-case basis and the specific circumstances will be important.
Below are some important considerations when dealing with a situation of this nature:
ACAS guidance recommends that rather than trying to force employees to be vaccinated, employers try to support their staff to receive the vaccine and, where a refusal is based on misinformation or a misconception, discuss their concerns with them and communicate with them carefully.
If an employer feels it necessary for employees to be vaccinated due to the nature of their work but they do not want to receive the vaccine for health or personal reasons then redeployment within the organisation could be considered to accommodate this. In some cases, it may be also be appropriate to agree that they continue working from home (if possible) as an alternative.
If dismissed for a refusal to be vaccinated, an employee with over 2 years’ service may have a claim for unfair dismissal. Such claims would each be decided on their own facts and we do not yet know whether the Employment Tribunals are likely to find vaccine-related dismissals by employers to be reasonable.
If someone chooses not to have the vaccine because of their disability or religion then that may give rise to a claim that they have been treated less favourably as a result of their refusal.
Information about whether employees have been vaccinated is medical data and therefore should be handled carefully in accordance with the Data Protection Act 2018. Employers should have a Privacy Policy in place which sets out how they may process such data.
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