What should I do if an employee refuses to have the Covid vaccine?

We all know that Covid-19 has had a serious impact on businesses and whilst it has affected some, more than others, there is no doubt all businesses are likely to have been affected in some form.

The vaccine roll-out brings us hope, things will return to normal and with the Prime Minister announcing the road map out of the current lockdown, and the belief this will be the last national lockdown, things certainly seem brighter.

Naturally, employers want their business to return to normal as soon as possible, and we have been receiving several enquiries from employers, asking if they can require employees to have the vaccine.

What can employers do if an employee refuses to have the vaccine?

Discuss their concerns.

If you are considering asking your employees to have the vaccine, you should discuss this with them and confirm your reasons for making the request, such as health and safety requirements. If some employees’ raise concerns, I recommend you discuss the concerns with them, to attempt to resolve matters.

However, you need to be aware that some employees may not wish to tell you they have had the vaccine and again, whilst you can encourage employees to tell you when they have had the first and second doses of the vaccine, you cannot make it mandatory.

Can I discipline an Employee for refusal to have the vaccine?

Employers may wish to argue that the requirement to have a vaccine amounts to a reasonable management instruction based on health and safety requirements. However, due to the nature of the request and the fact it is unrelated to the employee’s duties, it is likely that furthermore strenuous justification for the request would be needed.

Current ACAS guidance provides that a refusal to have the vaccine could be a disciplinary offence, depending on the following points (which will be specific to each individual situation):

• If the vaccine is required by the employer’s workplace policy;
• If the vaccine is necessary for the employee to do their job; and
• The reason for the employee’s refusal.

I would advise an employer seeks advice before commencing a disciplinary procedure against an employee for failing to have the vaccine, as the employee may be able to pursue claims against the employer.

Can I dismiss an Employee for refusal to have the vaccine?

Again, I recommend employers seek advice before taking any action against an employee who refuses the vaccine, as dismissing an employee for this reason, is likely to give rise to an Employment Tribunal claim. Further, there is potential reputational risk, as the first employers to dismiss for this reason, are likely to receive significant press attention.

The main point to note is that in order to dismiss an employee, you must be able to demonstrate one of the five potentially fair reasons for dismissal, such as capability, misconduct or some other substantial reason. Whilst it is arguable their refusal falls under some other substantial reason, the reasonableness of your decision will be scrutinised and this is where the employee could successfully argue dismissal for this reason is unreasonable.

Whatever your policy on the vaccine I would recommend you seek advice on the potential issues to avoid disputes arising.

Photo courtesy of Samuel Regan Asante on Unsplash