Covid-19 Vaccinations for the workforce
Over the next few months we will see the rollout of the COVID019 Vaccinations starting with the most vulnerable first.
As the Vaccine becomes commonplace, a question that is coming up for employers, is whether an employer can insist that an employee have the vaccine.
To attempt to force employees to take the Covid-19 vaccine risks the actions being considered unreasonable and therefore unlawful in an unfair/constructive dismissal claim.
This is because the Government has not made any statutory provision for the vaccine to be mandatory. However, these are unprecedented times, and the law has not been tested so it is difficult to give a definitive position. There are several pieces of employment legislation that need considering when assessing the legality of such action.
This is a very sensitive matter, and much will depend on the facts in each case, along with Government guidance, that will hopefully be published. Highlighted below are the various pieces of employment legislation that must be considered, however, ultimately, it will be for a tribunal judge to assess whether any dismissal or resignation is lawful or not.
Data Protection Act 2018
This will be a key consideration as consent will need to be gained by the employee. How do you deal with the practical issue of an employee not giving their consent as you cannot physically force somebody to do it?
Given there is no legal basis for mandatory vaccines since the Government have not brought in any statutory provision, it is doubtful therefore that requiring employees would be compatible with the Human Rights Act.
Equality Act 2010
In terms of the Equality Act 2010, there are questions around whether a refusal to be vaccinated is linked to a belief. There are religious groups that disapprove of vaccinations on the grounds that they interfere with divine providence.
Health and Safety at Work Act 1974, section 2
Section 2 of the Act requires an employer to take all reasonably practicable steps to reduce workplace risks to their lowest level. Whether it is possible to form an argument that by requiring employees to take the vaccine, the organisation is conforming to their responsibilities under health and safety legislation is not clear.
Health and Safety at Work Act 1974, Section 7
Section 7 of the Act makes the failure to take all reasonably practicable steps to reduce workplace risks to their lowest level a criminal offence. It also places employees under duty to co-operate with their employee as is reasonably necessary. However, as already mentioned, this is not straightforward since the Government have announced that it is not to be mandatory. So again, we need to await further clarity.
So, whilst there may be legal routes to argue a case for requiring employees to have the vaccine (under Health and Safety law), we do need to wait for guidance and perhaps for the matter to be tested before we can take a clearer position on it.
You hope that all employees want to take the vaccine voluntarily, because of the nature of their role and to help them return to a more normal life personally, but there may be some people who remain cautious and unsure.
If you would like more information and help ensuring the wellbeing of your employees, please get in touch: 0330 3322636
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