Can An Employer Commence Disciplinary Proceedings Against Employees Who Refuse To Have A COVID-19 Vaccine?

Employer could try and argue that requesting employees to have the COVID-19 vaccine amounts to a reasonable management instruction on the basis that it is intended to protect health and safety, and that a failure to comply is misconduct.

However, given the nature of the request along with the fact that having a vaccine is unrelated to employees’ duties, employers could run face difficulties arguing that it is a reasonable instruction. This would particularly be the case if employees are able to work from home effectively.

From a practical perspective, employers should consider:

• If the vaccine is required by one of their COVID-19 policies;
• The nature of employees’ jobs and whether vaccination is necessary for the employees to carry out their duties (e.g. will they be working with clinically vulnerable);
• Reason(s) why employees have refused the vaccine (e.g. whether they are linked to protected characteristics under discrimination legislation); and
• Risks that employees’ refusals to have the vaccine could cause to other individuals such as staff members or customers.

Taking the above into account, employers will have to tread carefully if they seek to commence disciplinary proceedings against employees who decline to have the vaccine on the basis that they have failed to follow a reasonable management instruction. Ultimately, whether requesting employees to have the vaccine would be deemed a reasonable instruction will depend on the specific context and nature of the employee’s role.

Employers should bear in mind that by adopting a hard-line approach to vaccination they could be leaving themselves open to claims for discrimination or unfair dismissal (if the employee was dismissed as a result of the disciplinary proceedings).