Compelling Employees to be Vaccinated for Covid-19 – How Do I Handle It?

For February 2021, we have asked the employment team at Tughans Solicitors to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

This month’s problem concerns:

I am the HR Manager in a large manufacturing company.  With the vaccine roll-out well under way, my Managing Director has asked me if we can require our employees to take the vaccine.  I am concerned about the legality of this request.  How do I handle it?

Although there may be the best of intentions behind your MD's request, you are correct to be concerned by it.  You, as an employer, cannot force your employees to take the vaccine.  Whilst of course you must do all you can to ensure the health and safety of your employees, that does not mean that you can insist on their being vaccinated, and there is no legislation that compels someone to be vaccinated. 

In an employment context, if you were to insist on employees being vaccinated, you would run the risk of several types of claim. 

The first type is discrimination.  If you dismissed, disciplined or subjected an employee to less favourable treatment on the grounds of their not taking the vaccine, they could bring claims on several protected grounds , including: 

• Pregnancy (government advice is that pregnant women should not take the vaccine);
• Disability (some individuals with disabilities will be unable to take the vaccine);
• Age (currently only certain age groups are being offered the vaccine);
• Religion (there are some individuals whose religious beliefs mean they will choose not to take the vaccine).

If you introduced a policy which meant that all employees must take the vaccine, that in itself could be indirectly discriminatory against someone with a protected characteristic, unless you can show that the implementation of the policy is a proportionate means of achieving a legitimate aim.  An employment tribunal would have to consider if there was a less discriminatory way of arriving at the same aim, for example, could the employer ask employees to continue to work from home instead?  Therefore, there is a risk that by introducing such a far-reaching policy, you would face claims of both direct and indirect discrimination on one of the protected grounds.

There is also a risk of an unfair dismissal claim, where you (as an employer) give a work instruction that the employee must take the vaccine and they refuse to do so.  Only an employee who has unreasonably refused to comply with an employer's request to carry out a work instruction can be fairly dismissed and in the instance here, that employee could argue that forcing them to take a vaccine, is not a reasonable work instruction and that their refusal was reasonable.

Alternatively, if an employee is told to take the vaccine and if they do not, that they will be dismissed, then there is a strong chance that they could resign and claim constructive unfair dismissal as a result.

Therefore, in summary, it is much more prudent for you as an employer, to encourage staff to be vaccinated and to increase awareness amongst staff by educating them on the issue and providing accurate and up-to-date information to them about the vaccine. You could also consider allowing paid time off for vaccination appointments during working hours, as a means of encouraging employees to take it, but with no obligation on them to do so.

Remember that if you want to collect any data about vaccines and your employees, then there will be specific data protection considerations, as any data about an individual's health and medical records is a type of "special category" of personal data, under the data protection legislation.