The big question on a lot of people’s minds recently is whether an employee can be forced to be vaccinated by their employer.
The answer to the big question is, on the face of it and as the law currently stands, no. The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.
As an employer, you can encourage employees to be vaccinated, for health and safety reasons. However, an employer cannot force an employee to be vaccinated, especially if this goes again a fundamental belief of theirs, their religion or they have medical reasons for being unable to have the jab (such as allergies or clinical vulnerabilities).
However, it does look like employees may be forced to receive the vaccine in the instance that they are required to travel abroad to carry out their duties. If we see the introduction of a COVID vaccination passport, we may also see people resisting an enforcement of this sort, but it is unlikely to be changed as we have seen vaccination passports as a requirement for some travel pre-COVID.
This also may apply in situations where staff are regularly interacting with vulnerable people, such as in care homes.
Employers also need to bear in mind that they require sufficient reason to request and hold information about employee vaccinations. Employers need to make sure that they check the holding of any medical data of this sort against their GDPR responsibilities.
The nature of this question also asks whether employees can be dismissed for not being vaccinated. This is an inadvisable step to take currently. It is imperative that employers are mindful that any policy that provides for unvaccinated staff to be at a disadvantage in the workplace is at risk of discriminating; many factors will come into play when these policies are put into place. Examples include age discrimination, as younger employees will have to wait longer to receive the vaccine, disability discrimination, as some employees may be considered to be too vulnerable to get the vaccine, and many more. However, this doesn’t necessarily take into account an otherwise healthy employee, who does not fit into a religious category, who identifies as an “anti-vaxxer”.
There has been a significant increase in the visibility of “anti-vaxxer” campaigns where people refuse vaccinations due to various reasons which can include conspiracies as to the possibility that the vaccine “contains a microchip that is controlled by Bill Gates”. We’ve previously seen that the employment courts have not been sympathetic to anti-vaxxer rhetoric but it is unclear what the situation will be going forward.
Although we are seeing the COVID-related cases coming through the employment tribunal system, it will take a while for cases like this to come through due to the vaccination rates and the backlogs we are seeing in the court systems.
In other words, a vaccination as a workforce requirement may become heavily contested through the courts and until we start seeing any legislation or judgments surround the issues of vaccinations and the workplace, it’s going to be one to watch. For now, it’s definitely no-go and it would be best to stick to only encouraging uptake of the vaccine.