Can you force employees to be vaccinated?

ACAS have produced some guidance to employers on issues around the Covid vaccine - The guidance is helpful as far as it goes, but doesn’t answer the question of whether employers can force employees be be vaccinated or whether employees can be fairly dismissed for refusing to be vaccinated. The legal issues associated with the issue are complex and, ultimately, will be fact specific. Whilst the ACAS guidance states that employers cannot force employees to be vaccinated, employees are obliged to comply with a reasonable management instruction. Such an instruction could include a requirement to be vaccinated. However whether the instruction is reasonable or not will depend on a range of factors including: (a) the nature of the employer's business and the employee's role. For example a requirement to be vaccinated may be more justified if the job entails direct contact with vulnerable patients or customers. (b) the reason for the employee's refusal. There are a number of reasons why employees may refuse to be vaccinated, particularly amongst those with disabilities, pregnant women or breastfeeding mothers. There may also be anxieties about the vaccine expressed by staff with religious or ethical concerns, although the British Islamic Medical Association has advised that the Pfizer/BioNTech Covid-19 vaccine is halal as it contains no components of animal origin. That indication would also seem to address concerns from ethical vegans. Employers will need to take particular care if an employee's refusal to be vaccinated relates to a 'protected characteristic' such as disability, age, religion or pregnancy because subjecting employees to less favourable treatment on those grounds can lead to claims of unlawful discrimination. Employees who object to being vaccinated may also raise civil liberties or human rights objections if they feel that they are being forced to get vaccinated against their wishes. (c) in deciding whether an employer's decision to discipline, or even dismiss, an employee for failing to be vaccinated, a Court or Tribunal would need to balance, on the one hand, an employee's reasons for refusal against the legitimate concerns of the employer and the wider public health interest in getting people vaccinated. Faced with an employee refusing to be vaccinated, an employer would be wise to consider whether there are any alternatives it can implement - such as requiring the employee to work from home or redeploying the employee to alternative duties with less people contact. Where no such alternatives reasonably exist, then an employer will be more justified in considering disciplinary action. You may have read that Charlie Mullins of Pimlico Plumbers is said to be introducing a requirement in contracts of employment that employees must be vaccinated or face dismissal. That is a bold, if understandable, course of action in light of the risk of claims from those with genuine concerns about the vaccine. He may well consider that the risk of claims from anti-vax employees is outweighed by the risk of claims from his customers who are exposed to Covid19 from any of his plumbers who may be unvaccinated. As a result an employers's approach to this issue may also be driven by a consideration of commercial risk - the question may be,

Care homes for example may consider that the safety of their residents (and the reputational issues associated with the care they receive) are outweighed by the risk of employee claims. There are no easy answers but, for now, the best advice seems to be for employers to encourage all employees to get vaccinated at the earliest opportunity and deal with any objections as and when they arise. A written policy on vaccination and the particular reasons why vaccination is important for the employer's business will help to set out the employer's position, address objections from employees and any common misconceptions about the safety or ethical issues surrounding the vaccine.

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