Can an employer insist that employees are vaccinated?

Can an employer insist that employees are vaccinated?

The vaccine roll out is now well underway with almost 21 million people in the UK now vaccinated. The roll out continues to prioritise the elderly and most vulnerable in society and we are beginning to see the effect as the number of new cases, hospital admissions and deaths begins to fall.

Many employers will understandably be eager to have their employees vaccinated as soon as possible in the hope that this will ensure a return to business normality at the earliest opportunity; however can an employer insist that current employees get vaccinated, or refuse to employ anyone who has not?

Employer’s ability to require new employees to have been vaccinated in order to be offered a job:

There have already been reports of several large companies indicating that they will not be willing to make an offer of employment to anyone who has not been vaccinated, and there is anecdotal evidence from many large employers that suggests that contracts of employment for new staff will be drafted in such a way as to ensure that vaccination is a requirement of employment.

Whilst the rationale behind this approach is understandable, adopting such a policy could be shown to be discriminatory in some instances: for example, young people (who are likely to be vaccinated last) may be disproportionately affected, as may certain religious groups who may not wish to accept a vaccine due to the ingredients contained within it.
This is an evolving area of law and it remains to be seen how such a policy would be viewed by an employment tribunal and whether or not an employer could justify what otherwise appears to discriminatory treatment on the basis that it is necessary in order to protect health and safety and ensure business continuity.

Employer’s ability to require existing employees to have the vaccination

The position is more complicated in relation to existing employees, who are very unlikely to be employed under contracts which contain provisions requiring vaccination.

No employee can be forced to receive a vaccine without their consent. Employees are however under a general obligation to follow ‘lawful and reasonable instructions’ given to them by their employer and an employee who refuses to be vaccinated may jeopardise their continued employment as a result. There is a substantial amount of case law on what constitutes a reasonable instruction. Unhelpfully, but unsurprisingly, the matter of ‘forced’ vaccinations has never come before an employment tribunal for consideration.

Generally speaking, factors which may be relevant when considering whether there has been a failure to follow an employer’s instructions, include;

• whether the instruction is made in accordance with the contract;
• whether there are circumstances justifying the refusal of the instruction, even if it seemingly falls within the scope of the employer’s powers (i.e. where compliance with the instruction would endanger the employee’s safety);
• the fairness or reasonableness of the instruction, even if it is lawful; and
• whether the employee was acting reasonably in refusing to comply with a lawful instruction.

Applying this reasoning, an instruction to be vaccinated is likely to be regarded as a lawful and reasonable instruction where:
as part of their duties, the employee needs to travel to countries which require a vaccination for entry (if these duties cannot be carried out from home);

• the employee works with the clinically extremely vulnerable;
• vaccination is more likely to protect work colleagues or others (such as patients, customers or visitors), particularly in health or social care settings, where other work colleagues are also being offered vaccination; or
• the workplace cannot be made ‘COVID–19 secure’ by any other reasonable means.

In contrast, asking staff to be vaccinated in a low-risk setting, or one in which staff have been able to work from home effectively, is less likely to be regarded as reasonable.

With emerging scientific evidence that an individual who has been vaccinated is less likely to transmit the virus to others, it may be difficult to argue that a request for staff, particularly in high risk industries, to be vaccinated would be an unreasonable management instruction.

Health and safety legislation means that employers owe a duty of care to their employees and to those using its services and a failure to do so can, in some instances, constitute a criminal offence. Particularly in health and social care settings, it may be difficult for an employer to justify allowing unvaccinated employees to attend the workplace.

What next?

As the vaccine roll out continues, we wait to see if government guidance will be issued to employers to assist in dealing with this matter.

It is likely that we may, at least initially, see a sector based approach to requirements for vaccines being adopted. Specifically, those providing close contact care and services to vulnerable members of society (such as care workers and NHS staff) are almost certainly expected to be vaccinated in order to perform their role/duties safely. Beyond that, a cautious approach should be adopted by employers, and consideration given on a case by case basis to each individual’s personal circumstances and role.