Can you force your staff to have a Covid jab?

15 Jan 2021

As the country begins to rollout its Covid-19 vaccination programme, it has been suggested some public-facing shop staff might be in line for early immunisation.

Here, Bira’s Legal team looks at whether you can force an employee to have the jab.

At the start of December 2020, the UK became the world’s first country to approve the Pfizer-BioNTech vaccine. Less than one week later, the first jab was administered.

Following 10 months of disruption and chaos, a whirlwind of economic turmoil, and nearly 70,000 deaths UK-wide, it seemed that a light has finally appeared at the end of the tunnel.

However, there remains a final, predictable fork in the road. Whilst employers may be breathing a sigh of relief, the issue of obtaining collective buy-in from workforces is becoming apparent, with many naysayers and ‘anti-vaxers’ already expressing their disapproval at the prospect of receiving the vaccine.

With this in mind, the obvious question looms for businesses across the UK: can employees be compelled to have it?

Unfortunately (or fortunately, depending on your stance) the short answer is ‘no’, says Bira’s legal partner Ellis Whittam.

It’s very difficult to persuade employees to do anything that they do not want to do and the employer’s options in this scenario are limited. However, as is to be expected in the realm of employment law, there is an array of caveats to consider.

Firstly, there is currently no legal requirement for anyone to receive the vaccine in the UK. By extension, it stands to reason that employees should not be forced to do so.

However, if the employer feels it’s imperative that the entire workforce is vaccinated, there may be an avenue to take disciplinary action in the event of a refusal.

That said, nothing is guaranteed, and each case will be judged on its merits. James Tamm, Director of Legal Services at Ellis Whittam, said employers should proceed with caution. “Taking disciplinary action against employees for refusing to have the vaccine would be fraught with risk and there are several factors to be taken into account. Firstly, is the request a reasonable one in the first place? That will depend on the nature of the employer’s business and the employee’s role.

Secondly, an employer must also consider the employee’s reasons for refusing to take the vaccine.”
Could refusal be legitimate?

At this early juncture, it’s important that employers consider all possible scenarios, including the various reasons that could be given for refusing to take the vaccine.

James said: “If there are genuine health, religious or philosophical concerns – and I don’t simply mean internet conspiracy theories that the vaccine is unsafe – then they should be taken into account by the employer and weighed against their reason for insisting the vaccine needs to be taken.

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“In a disciplinary case, it is always important to weigh the employee’s mitigating circumstances against the alleged offence before making a decision and these sorts of cases would be no different.”
On this basis, it could be argued that legitimate health-related or religious reasons would prevent employers from taking disciplinary action. If the nature of the work meant that employees without vaccinations could not attend then, in turn, this may require employers to provide full pay or statutory sick pay to the employee in the event that they refuse to receive the vaccine. These are issues that could potentially be discriminatory and, if raised, should be considered thoroughly before action is taken.

That said, if the employee cannot provide a legitimate reason, it is arguable that they are not ‘ready, willing and able to work’, and therefore are not entitled to pay.

Other considerations:

Though it’s hard to say for sure at this early stage, it’s likely that vaccination will become a complex issue for employers to navigate. So, if you’re in doubt about how to handle this, the best course of action is to seek professional advice as soon as possible. That said, here are a few final points to consider.

Firstly, before any drastic or conclusive action is taken, consider whether the individual can continue their work remotely in the event that they refuse to be vaccinated. Not only would this contribute towards safeguarding the remainder of the workforce, but it may allow both employer and employee to avoid a potentially complicated legal issue.

Secondly, employers must consider the parameters of on-site conduct for those who have been vaccinated.

Finally, employers should consider how their approach to communication can work to their advantage in this scenario. Though the vaccination is, as we’ve already discussed, a voluntary procedure, organisations should consider implementing some gentle encouragement measures.

These may include invoking the importance of various health and safety principles, and generally appealing to the better nature of the employee.

For more advice visit Bira Legal here



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