As the first Covid vaccine was administered live on television yesterday morning (08/12/20) it struck me that at some point this vaccine could be available for businesses to purchase privately, in the same way that the flu vaccine can be, and that some employers may be keen for their workforce to have the vaccine. But what happens if employees refuse the vaccine when offered?
Unfair to discipline or dismiss
In my view if an employee refuses to have the vaccine it would not be fair or reasonable for an employer to discipline or dismiss an employee who refuses.
That being said, in a situation where an employee works with vulnerable people, i.e. in a care home, it may be easier for an employer to justify a fair dismissal, if on balance of risk they decide that the risk is too high for an unvaccinated employee to continue to work with the most vulnerable people.
I believe that an employer in this situation would have to explore the reasons why an employee does not want the vaccine and look at whether there is an alternative option which is agreeable and reduces the risk and/or look at alternative employment for them in the business before they could justify termination and successfully defend a claim for unfair dismissal.
In all other work environments, unless there was an identified high risk that would justify the decision, I do not believe an employer would be able to justify dismissal.
This would, in my view, be supported by the fact that the government are not planning to roll out the vaccine for those under 60 (currently). If I were acting for an employee in this situation, I would rely on the fact that if the government do not consider it a risk it is difficult for an employer (in an ordinary working environment) to justify dismissal based on their perception of risk.
Of course, this is a completely unprecedented time, and it would need to be tested in the Employment Tribunal and Courts to be able to say for certain.
It could be possible for employers whose workforce are now working remotely due to Covid to implement a policy that employees are only allowed to return to working in the office environment if they have had the vaccine. At least in the short term this could be something that safety conscious employers implement.
I am not sure that it would work in the long term as vaccinations are rolled out and immunity amongst the population and therefore the risk slows. Could you justify this policy if the number of cases of Covid in the UK falls to an insignificant level? A better question may be, would you want to?
Whilst I do not believe that you can justify disciplinary action or dismissal of an employee (aside from potential high risk environments) it is of course possible for you to implement a recruitment policy that requires a new employee to have had or have the vaccine as a condition of their employment.
You would, however, have to proceed with caution if you have a candidate who has refused to have the vaccine for reasons related to a protected characteristic under the Equality Act, for example religious reasons, reasons related to a philosophical belief or possibly related to a disability.
This is of course completely new and highly emotive, and as I have said throughout the pandemic, the views of individuals on Covid are very polarised and it is therefore important to proceed with caution, with understanding and with tact for any decision you decide to make that may impact your employees. I therefore strongly recommend that you seek advice before implementing any policy on this.
The views in this article are of course my own based on my knowledge of the current law and my opinion, I am always pleased to hear and consider other opinions so please do get in touch or leave a comment if you have a view on this.
I am also keen to hear from anyone who is considering this in their business.