VIEWPOINT NO JAB = NO JOB?
Can an employer require an employee to take a COVID-19 vaccination? Alec Colson asks the question.
AS IT STANDS, there is no legal provision that permits an employer to require an employee to take one of the COVID-19 vaccines, but with some businesses expressing an intention to introduce such a policy, it is likely that others will follow suit too.
However, compulsory vaccines can be a legal minefield and employers will need to tread carefully before implementing such a measure. Without careful planning and consideration, organisations risk breaching strict rules and guidelines, which could land them in serious trouble later down the line.
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 construction sector for its employees to take the vaccination could be argued to be a ‘reasonable management request’ as refusing to take the
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vaccination could pose severe risk to residents if an employer is working in their home.
Employees will want to be reassured that they are working in a safe environment
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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
Alec Colson is a Partner and Head of Employment Law at Luton-headquartered law firm Taylor Walton, specialising in Employment and Industrial Relations Law.
planning a pregnancy, is likely to amount to sex discrimination, pregnancy/maternity discrimination.
Data protection Personal data collected in connection with an employee’s vaccination records will be sensitive personal data or special category personal data and will need to be processed in accordance with GDPR. But is it legal to collect such data? The answer to this is whether the employer, as a data controller, has a legitimate interest or legal obligation to collect vaccine information due to the nature of their business.
Conclusion
On the face of it, an employer’s requirement for an employee to have a COVID vaccine appears a ‘reasonable instruction’ in order to keep other work colleagues safe in the work place. However, the position is far more complex and raises numerous legal issues which will need to take into account the requirements of the employer and the individual circumstances of the employee. As the vaccine rolls out across the age groups, employers will need to keep abreast of the Government public health guidance in relation to the pandemic and start to develop their own COVID-19 pandemic policies to take into account the implications of the vaccine in the workplace. Whilst the arrival of the vaccine is a huge relief for everyone, the vaccine should be seen as the next chapter in the pandemic story and sadly not the end. BMJ
www.buildersmerchantsjournal.net June 2021
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