Legal Matters with By Matthew Ainscough, Bell & Buxton Solicitors incorporating Ironmonger Curtis
The senior employment lawyer advises employers against a ‘risky’ COVID jab policy
‘No jab, no job’ headlines are frequently appearing in the media at the moment, in the wake of the government’s rapid rollout of the COVID-19 vaccine programme. However, looking beyond the headlines, what are the legal issues that an employer would have to consider before introducing such a policy?
In short, employers should be very wary of introducing such a policy. At the time of writing, ACAS guidance advises that it is best for employers to encourage staff without making it a requirement.
Any employer considering imposing a mandatory vaccination requirement should consider the following issues, which make it a risky proposition:
- Requiring an employee to be vaccinated without their consent could amount to a fundamental breach of contract, entitling them to claim constructive dismissal.
Vaccination is not suitable for everyone, for example pregnant women. - Mandatory vaccination could be indirectly discriminatory on the grounds of protected characteristics (such as disability, age, religion/belief, or pregnancy) and/or a breach of the right to privacy under the Human Rights Act.
- Currently, individuals must wait their turn in order of priority, to be offered vaccination. Allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees.
- Mandatory vaccination could be difficult to justify on health and safety grounds, as currently it is understood that vaccines are not 100% effective.
- An employee might have an adverse reaction to the vaccine, and if so they might attempt to bring a personal injury claim against the employer.
- Mandatory vaccination could result in negative publicity for the employer.
In light of the risks of a mandatory vaccination policy, employers should instead encourage take-up, and consider what other alternative measures could be introduced to reduce the risk of COVID-19 in the workplace, such as:
- Regular testing.
- Regular health and safety reviews and risk assessments.
- Allowing employees to work from home.
- Temporarily adjusting an employee’s role to reduce risk e.g. for pregnant or disabled employees.
Can an employer dismiss an employee who refuses to have a COVID-19 vaccine?
If an employee has less than two years’ service, then they do not have any unfair dismissal rights, so it is possible to dismiss them for refusing a vaccine, provided that there are no potential discrimination issues, such as pregnancy, disability or religion.
However, if an employee has two or more years’ service then an employer should be aware that a dismissal for refusing to have a vaccine could be unfair (and potentially discriminatory, depending upon the reason for the refusal), although inevitably it will be dependent on the individual circumstances of the case and the nature of the workplace – for example in cases where employees are working with vulnerable individuals.
In summary, there are many potential risks associated with introducing a mandatory vaccination policy, and employers are best advised to take legal advice before making any decisions.
Please contact Matthew Ainscough on 0114 249 5969 or m.ainscough@bellbuxton.co.uk for advice on any Covid-19 work issues, or any other employment law enquiries.
