With businesses forced to close numerous times over the past year, it’s unsurprising that employers are desperate to get back to normality. The government (and indeed, the whole British population) has staked its hopes on the speedy roll-out of the two approved vaccines (Pfizer-BioNTech and Oxford-AstraZeneca), which is already under way. It’s also understandable that employers will be keen for their staff to have the vaccine as soon as possible, to avoid closure due to outbreaks of the virus at work. However, forcing or pressurising your staff into doing so is extremely risky from a legal standpoint.
What could happen if my business made vaccination mandatory?
No vaccination has ever been compulsory; people have always the choice to have any jab that’s been brought out. Therefore, forcing your employees to have the jab could leave your business open to legal claims, both civil and criminal.
This could include objections under article 8 of the European Conventions on Human Rights, as well as discrimination claims under the Equality Act 2010 for failing to uphold your employee’s philosophical beliefs. For example, an ‘anti-vaxxer’ may be able to take their employer before a tribunal and make a case that their belief is genuinely held and worthy of respect.
Other possible claims under the Equality Act include disability discrimination, where an employee is unable to get the vaccine because of a health condition, or age discrimination, where it is not suitable or available for those of a certain age.
The only exception here might be for employees who work with vulnerable people in healthcare settings, as refusal could put those people at risk. Under these circumstances, asking your employees to have the vaccine could be seen as a ‘reasonable request’. However, this approach will depend on the exact circumstances, and must still be treated with caution.
How can I encourage more employees to get vaccinated?
It’s likely that most of your employees will want to get vaccinated without any encouragement from you; after all, the government has been clear that the loosening of restrictions depends on the successful roll-out of the vaccine.
However, for those who are on the fence, you may be able to rely on the employer’s implied duty to take reasonable care of the health and safety of its employees and to take reasonable steps to provide a safe workplace and a safe system of work to impose a policy which, for example, requires staff to have the vaccine to return to the office, with all the social benefits that brings, while those who do not want to have it can remain working from home.
However, the employer will need to be mindful of discrimination considerations and breach of contract or unlawful deductions from wages claims could also arise if unvaccinated employees’ pay is affected because they are not permitted to attend work. Again, it will depend on the circumstances and it is always important to seek legal advice.
Advice is key
The potential legal fallout of any attempt to compel or pressurise staff into having the vaccine means it is highly recommended that you consult qualified employment lawyers before taking any course of action. Our Employment Law team has the expertise and thorough knowledge of the case law needed to advise you in these difficult circumstances.