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With the vaccine currently being rolled out across the UK, businesses will soon be considering returning to the workplace in accordance with the UK’s roadmap out of lockdown. To protect employees and customers, some organisations will be exploring the possibility of making the vaccine a condition of employment, but Alec Colson, Head of Employment Law at Taylor Walton, explains that this could be a legal minefield.

Currently, there is no legal provision that permits an employer to require an employee to take one of the COVID-19 vaccines, however some businesses have expressed their intention to make it a requirement for staff with many more expected to follow.

However, compulsory vaccines is a very difficult issue to navigate and employers will need to exercise caution with how they approach the matter, so they do not breach any strict rules or guidelines.

Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974) an employer must take all reasonably practicable steps to reduce workplace risks to their lowest practicable level.  Additionally, under section 7 of the HSWA 1974, an employee has a duty to cooperate as necessary with the employer to enable it to comply with any statutory requirements including reducing workplace risks.

Moreover, employees will want to be reassured that they are working in a safe environment. However, this is unlikely to extend to employees being legally required to take the vaccine in all business sectors and we will have to wait for further guidance from the Government on what measures an employer may be required to take.

The meaning of “reasonableness” is likely to depend on the business sector of the employer and the services it provides. For example, the request of an employer operating in the social care sector for its employees to take the vaccination could be argued to be a ‘reasonable management request’ as refusing to take the vaccination could pose severe risk to fellow employees and patients and thereby threatening the business.

Therefore, dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fairly, either on conduct grounds or for some other substantial reason.

The position in other sectors is likely to be less clear and in any event, an employer should proceed with caution before deciding to dismiss. Employers will need to consider other available alternatives which may include moving the employee to another role involving less contact with clients or other employees.

In all sectors, the employer will also need to consider carefully the circumstances of the individual employee. The risks include discrimination on the grounds of religion and belief, disability, pregnancy and breaking data protection legislation as well as unfair dismissal if the employee has unfair dismissal rights.

Religion and Belief

It is unlikely that an “anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. However, not all vaccines in production have released their list of ingredients and it is possible that gelatine may have been used in some vaccines or in its production process and therefore, an employee with certain religious beliefs or vegans may have religious or philosophical grounds for refusing to take the vaccination.

Disability discrimination

If an employee has been advised by their doctor not to take the vaccine on medical grounds an employer’s requirement to take the vaccine may amount to disability discrimination. Even if the employee is not disabled, a Tribunal may find that the request to the employee to go against medical advice is an unreasonable request in any event.

An employee’s fear of needles (trypanophobia) may also amount to a disability and therefore the employer would need to consider whether it could provide alternative working arrangements for example, working from home on a permanent basis.

Pregnancy and maternity discrimination

Public Health England advice states that “women should be advised not to attend for vaccination if they are, or may be, pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine”.

Therefore, a requirement to take the vaccine as a condition of employment for a pregnant employee, or an employee planning a pregnancy, is likely to amount to sex discrimination, pregnancy/maternity discrimination.

Whilst an employer’s requirement for an employee to have a COVID vaccine appears a ‘reasonable instruction’ to keep people safe, the position is a lot more complex than meets the eye and raises numerous legal issues, which need to be taken into account before a decision is made.

As the vaccine rolls out across the various age groups, it’s crucial that employers stay up to date with the latest developments in relation to the pandemic, so they can develop their own policies that make sense for the individual workplace.

The individual circumstances of the employee must be taken into account, and whilst the arrival of the vaccine is a light at the end of the tunnel for businesses, it is sadly not the end of the pandemic story, with more twists and turns to come.

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