The government seems to be encouraging the idea of mandatory vaccination for employees, but has only legislated mandatory vaccinations for care staff from November 2021. Therefore, if employers choose to demand that their staff are vaccinated then they will need to be very careful that they are not in breach of existing legislation.
This is a confusing time for employers who are required to offer a safe working environment for their employees whilst also having obligations not to discriminate against or breach their existing employment contracts. It is essential to consider vaccinations in the context of the evidence attached to them. Currently it could be argued that there is no evidence the vaccines reduce transmission, merely that those vaccinated are unlikely to experience the most severe symptoms. Therefore, an employee could argue that they are not putting others at risk by refusing to receive the jab, only themselves if they contract Covid.
Currently, UK law states that employees cannot be forced to have the vaccine. Making vaccinations mandatory for anyone with protected characteristics could lead to claims for discrimination under the Equality Act 2006 as if the employer were to introduce a policy that contravenes one of the protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation, the employee may be eligible to bring a claim in the employment tribunal.
For example, employers could face claims of age discrimination if they penalise employees who have not yet had both doses of the vaccine. Also, someone with long Covid could be classed as disabled under section 6 of the Equality Act, and they may have been advised not to have the vaccine. Pregnant woman have been advised that they should be offered the vaccine; but it remains a matter of individual choice.
There is an argument that mandatory vaccines could be in breach of the European Convention of Human Rights (ECHR). Article 8 provides the right to privacy, and mandatory vaccinations could be considered an unnecessary invasion of this privacy as there are other, less invasive ways to minimise the risk of transmission in the workplace, such as social distancing and wearing a mask.
Employees who reject vaccination because of their religion could rely on Article 9, which states: “Everyone has the right to freedom of thought, conscience and religion.”
Article 14 can also be relied upon as it states that those who do, should be able to reject the vaccine without facing discrimination.
There are also major concerns about whether an employee would be entitled to bring a personal injury claim, in the event that they received the vaccine to retain their job, and it caused a medical issue, such as a serious injury or allergic reaction, or in the event that a mother is pregnant, led to the loss of a baby.
There are numerous other issues to consider. Will mandatory vaccinations apply only to client facing employees or those that attend people’s homes? Will employees who work remotely be exempt?
Without legislation, it is employers who are taking the risks. The best advice at present is for employers is to ensure they have Covid-secure measures in place and continue to prioritise the safety of their employees, as well as communicating with them to understand what they are comfortable with. Employers will need to update their policies and contracts by reviewing the rules extremely carefully. They will also need to consider their insurance policy terms to ensure they are suitably covered against any claims. Even with all employees vaccinated there is nothing in the HSE or UK government’s Covid-secure guidance that suggests that once staff are vaccinated, Covid secure measures will no longer be required.
To discuss matters further in relation to your specific situation, please do not hesitate to contact [email protected]
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Justin deals with all aspects of Dispute Resolution for both businesses and individuals, including including Contentious Probate, Employment Law ( for both businesses and individuals) and Commercial Litigation. This means that he is familiar with the many different courts and tribunal as well as the many different methods for resolving disputes, including alternative dispute resolution such as adjudication and mediation.