Can an employer require an employee to take a COVID-19 vaccination? – February 2021

There is no legal provision which permits an employer to require an employee to take one of the COVID-19 vaccines. However, one employer has already publicly announced that he intends to make taking the vaccine a condition of employment and it is likely that other employers may wish to follow his example. Therefore, what is the legal position in this area? In short, compulsory vaccines is a legal minefield and employers will need to be very careful how they approach the matter. The following article explores the issues.

Background

Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974) an employer must take all reasonably practicable steps to reduce workplace risks to their lowest practicable level.  Additionally, under section 7 of the HSWA 1974, an employee has a duty to co-operate as necessary with the employer to enable it to comply with any statutory requirements including reducing workplace risks. Moreover, employees will want to be reassured that they are working in a safe environment. However, this is unlikely to extend to employees being legally required to take the vaccine in all business sectors and we will have to wait for further guidance from the Government on what measures an employer may be required to take.

The meaning of “reasonableness” is likely to depend on the business sector of the employer and the services it provides. For example, the request of an employer operating in the social care sector for its employees to take the vaccination could be argued to be a ‘reasonable management request’ as refusing to take the vaccination could pose severe risk to fellow employees and patients and thereby threatening the business. Therefore, dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fairly, either on conduct grounds or for some other substantial reason.

The position in other sectors is likely to be less clear and in any event, an employer should proceed with caution before deciding to dismiss. Employers will need to consider other available alternatives which may include moving the employee to another role involving less contact with clients or other employees.

In all sectors, the employer will also need to consider carefully the circumstances of the individual employee. The risks include discrimination on the grounds of religion and belief, disability, pregnancy and breaking data protection legislation as well as unfair dismissal if the employee has unfair dismissal rights.

Religion and Belief

It is unlikely that an “anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. However, not all vaccines in production have released their list of ingredients and it is possible that gelatine may have been used in some vaccines or in its production process and therefore, an employee with certain religious beliefs or vegans may have religious or philosophical grounds for refusing to take the vaccination.

Disability discrimination

If an employee has been advised by their doctor not to take the vaccine on medical grounds an employer’s requirement to take the vaccine may amount to disability discrimination. Even if the employee is not disabled, a Tribunal may find that the request to the employee to go against medical advice is an unreasonable request in any event.

An employee’s fear of needles (trypanophobia) may also amount to a disability and therefore the employer would need to consider whether it could provide alternative working arrangements for example, working from home on a permanent basis.

Pregnancy and maternity discrimination

Public Health England advice states that “women should be advised not to attend for vaccination if they are, or may be, pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine”.

Therefore, a requirement to take the vaccine as a condition of employment for a pregnant employee, or an employee planning a pregnancy, is likely to amount to sex discrimination, pregnancy/maternity discrimination.

Data protection

Personal data collected in connection with an employee’s vaccination records will be sensitive personal data or special category personal data and will need to be processed in accordance with GDPR.

Is it legal to collect such data?

The answer to this is whether the employer, as a data controller, has a legitimate interest or legal obligation to collect vaccine information due to the nature of their business. A care home owner may well be justified or may become legally obliged to do so whereas for an office role, the requirements to have such information is less clear cut.

Conclusion

On the face of it, an employer’s requirement for an employee to have a COVID vaccine appears a ‘reasonable instruction’ in order to keep other work colleagues safe in the work place. However, the positon is far more complex and raises numerous legal issues which will need to take into account the requirements of the employer and the individual circumstances of the employee.

As the vaccine rolls out across the age groups, employers will need to keep abreast of the Government public health guidance in relation to the pandemic and start to develop their own COVID-19 pandemic policies to take into account the implications of the vaccine in the workplace. Whilst the arrival of the vaccine is a huge relief for everyone, the vaccine should be seen as the next chapter in the pandemic story and sadly not the end.

The Employment Team at Taylor Walton is able to assist employers with the development of their COVID-19 policies and therefore please contact us if you need further assistance and advice.