Making vaccination mandatory | Breaking down the legal position
Written by James Tamm on 20 October 2021
As employers roll out their back-to-work plans, the issue of whether to make vaccination a compulsory requirement will no doubt crop up. It’s a question that’s been on the table for some time, and one which employers will need to wrestle with urgently in order to communicate a clear stance, reassure employees and avoid issues down the line.
Like many workplace issues, employers will no doubt look to what other businesses are doing. In recent weeks, big names such as Google, Facebook and Microsoft have revealed that they will require employees to be fully vaccinated before returning to their US offices, while others like Pimlico Plumbers have announced they are only hiring vaccinated staff. Even the Foreign Secretary has said mandating jabs is a ‘smart policy’.
However, confusion over vaccine passports continues to plague businesses, particularly where their employees are concerned. While the government has published resources to help employers promote and support the vaccination of their workforce, it has stopped short of making this a legal requirement (with the exception of care home workers, where new regulations will make vaccination mandatory from 11 November).
So, can employers insist that employees are double-jabbed as an additional safety measure? With almost a third of employers reportedly contemplating such a policy, here’s what you need to know to stay on the right side of employment law.
First, a lot will depend on the risk profile within the workplace
While you cannot physically force employees to be vaccinated, you may be able to enforce such a policy if the risks within the workplace mean that vaccination is the surest way to protect staff and customers.
This comes down to the risk profile of the workplace; in care homes, for example, vaccinations will be legally required due to the vulnerability of service users. An office environment is very different, and it will therefore be more difficult to demonstrate that vaccination is a necessary requirement.
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Any decision to mandate vaccinations should therefore be supported by a risk assessment
As the risk of transmission will vary based on:
- the risk profile of the workplace;
- the employee’s job role; and
- the services you carry out,
employers could only require employees to be vaccinated where it is identified within a risk assessment as a necessary requirement. If it is identified as a requirement, then an instruction to staff to be vaccinated may amount to a reasonable management instruction.
And that’s the crux of it: is the requirement to be vaccinated a ‘reasonable management instruction’?
To determine this, take the following steps:
- Explain why the employee needs to be vaccinated.
- Given the invasive nature of vaccination – as opposed to, say, workplace COVID testing – this is likely to be a high bar. What’s more, as the government isn’t making vaccinations mandatory for the general public, the employer will need to be a special case. In many roles and in many sectors, a request to be vaccinated will never be reasonable given the type of work the employee does. The employer’s business, the employee’s role and the reason why vaccination is necessary will need to be considered carefully before arriving at a conclusion. If an instruction to be vaccinated is not reasonable, then no further action can be taken.
- Explore why the employee is refusing.
If you have concluded that vaccination or testing is a reasonable instruction and an employee is refusing, investigate why. If their refusal is due to health issues, pregnancy, or their religious/philosophical beliefs, they may have a legitimate excuse and forcing the issue could amount to discrimination. Instead, try to alleviate any concerns the employee may have about the vaccine by citing information from official sources and explaining why it is necessary to be vaccinated within that particular role. Again, it will help if you can support this assertion with a risk assessment.
- Explore other options.
If the employee continues to refuse vaccination, then explain that other options will have to be considered, for example asking them to take up an alternative role. If none are available, consider whether the employee can still attend work. If they can’t, then it may be permissible to suspend without pay, on the basis the employee is not ready, willing and able to work as they cannot comply – by their own choice not to have the vaccine – with a requirement of your risk assessment. Keep in mind that this is a very grey area, so advice should be sought first.
So, you’ve determined that vaccination is a reasonable management request – does that mean you can you discipline or dismiss an employee for refusing?
Normally, if an employee unreasonably fails to follow a reasonable management request, it may be possible to treat as gross misconduct. The key will be demonstrating that your requirement to get vaccinated is a reasonable request and, equally, that the employee’s refusal was unreasonable. This will be very case-specific.
Another factor that may play a part in the fairness of the dismissal is whether the employer has a vaccination policy which sets out their stance to staff. If you don’t yet have one in place, a template vaccination policy is available to download from our Coronavirus Advice Hub.
An employee’s reasons for not taking the vaccine may also bring discriminatory issues into play. Again, there may be legitimate health reasons that mean it cannot be taken safely, and there is some doubt as to whether the vaccine should be taken by pregnant women. In addition, some vaccines can contain gelatine, which would cause an issue from a religious belief perspective. Employers must take legitimate concerns into account.
Ultimately, making vaccination mandatory is an untested area
It’s not yet known how Tribunals will approach this issue, particularly given the wide-ranging views on the topic. You therefore should make sure that the requirement to be vaccinated is backed up with as much evidence as possible – and always take advice.
Need expert guidance?
There are numerous legalities to consider when devising your policy on employee vaccination and managing those who refuse. Our Employment Law and Health & Safety experts can help you to develop your stance, handle objections compliantly and avoid discrimination issues, whilst ensuring all necessary measures are in place to keep people safe.
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