COVID-19 Vaccines and Employment Law

posted by KeithDaniel

Since the COVID-19 vaccines were rolled out, we have received a number of queries from various employers.

We have therefore addressed the main questions below, which we hope you may find useful.

Can an employer force its employees to be vaccinated?

The simple answer is no, an employer cannot force its employees to be vaccinated.

The Health and Safety at Work Act 1974 requires employers to take reasonable steps to reduce any workplace risks. Therefore, employers should encourage their employees to receive the vaccine by providing its workforce with factual information, however employees cannot be forced or compelled to be vaccinated.

If an employer were to force its employees to be vaccinated then the employer would not only be in breach of Article 8 of the European Convention of Human Rights but it would also be in breach of The Public Health (Control of Disease) Act 1984 which states that members of the public cannot be compelled to undergo medical treatment which includes vaccinations.

There may be a medical or religious reason as to why an individual has refused to receive a vaccine and therefore they could be protected under the Equality Act 2010. Therefore, if they were subjected to a detriment, treated unfairly or dismissed as a result of refusing to have a vaccine they could issue a claim for direct or indirect discrimination, unfair dismissal or constructive unfair dismissal (if for example they resigned in response to their employer’s actions). In addition, if an individual could demonstrate that their anti-vaccination belief amounted to a protected philosophical belief under the Equality Act 2010 then they would also receive legal protection. For instance, a vegan may refuse to have a vaccine that has been tested on animals or contains animal based ingredients. Last year, a tribunal held that ethical veganism amounted to a philosophical belief that is capable of protection from discrimination under the Equality Act 2010. 

An employer may attempt to argue that they are justified in making it a mandatory health and safety requirement for their members of staff to be vaccinated where they are working in healthcare or home care settings or if staff travel to other countries for their work and need to be vaccinated. However, it remains to be seen what approach the tribunal will take here, especially considering the fact that the Government have not made the vaccination mandatory and because there are other health and safety measures that can be implemented.

Employers should therefore encourage their workforce to be vaccinated by signposting them to relevant factual information such as the NHS website, however it is crucial that employees are not forced or compelled to be vaccinated and are not subjected to a detriment as a result of their refusal. It is important that individual viewpoints are always respected.

Must an employer allow their employees time off during working hours to receive the COVID-19 vaccination?

There is no automatic legal right to permit an employee to have time off for medical appointments. However, most employers are likely to allow time off for COVID-19 vaccinations not least because allowing the vaccination to take place assists in providing a safe place to work and minimises the risk for employees. Subject to any contractual provision within the employment contracts and staff handbook, there is no legal requirement for employees to be paid for time off, although there are calls for this right to be introduced. Notwithstanding this, some employers may wish to offer paid time off as an incentive for employees to attend their vaccination appointment.

If you have any questions regarding the issues raised in this article, or if you would like some information on the training packages that we provide, please contact us on 029 2034 5511 or at employment@berrysmith.com.