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Insights - 28/01/2022

Work and the Coronavirus Vaccine

Employers are facing a new set of issues in the workplace that are currently untested in the Courts of England and Wales born out of the pandemic. In this article, we try to answer a few of the burning questions employers may have in light of the UK Covid-19 vaccination programme.

Can employers require employees to be fully vaccinated?

Other than in those sectors for which the Government has introduced legislation to mandate vaccines, namely Care Homes and the NHS, it may still be possible in some circumstances for employers to require some or all of their existing employees to be vaccinated. This is likely to be a small minority of cases at the moment, but the picture may change in the future.

Can we require all new starters to have received the vaccination as a condition of employment?

This is less risky than mandating vaccination for existing employees because there will be no risk of unfair dismissal claims from potential new recruits. They will still, however, have the right not to be discriminated against for one or more of the protected characteristics covered by the Equality Act. This means employers opting for this sort of recruitment policy will need to consider making exceptions for those employees with medical or religious/philosophical belief reasons for not being vaccinated.

Can we discipline or dismiss employees who refuse to be vaccinated?

This depends on why the employee is refusing and whether they have at least two years’ continuous employment so as to acquire the right to claim unfair dismissal.

If the objection is related to a protected characteristic such as disability or belief, it could be discrimination to discipline or dismiss the employee.

If the employee is not protected by discrimination laws, the key question is whether they have two years’ service. If so, they could bring an unfair dismissal claim if dismissed for refusing to be fully vaccinated and it would then be for an Employment Tribunal to assess the reasonableness of the employer’s decision to dismiss.

Before going as far as to dismiss an employee, it would be wise for employers to consider options short of dismissal. These might include redeployment to another role, or potentially keeping the employee working from home (if possible). It remains to be seen if an Employment Tribunal would accept measures such as regular lateral flow testing, evidence of natural immunity, and/or mask wearing as alternatives for employees who refuse vaccination in circumstances where an employer has reasonable grounds to consider a dismissal.

Should we have a vaccination policy?

Yes, if you are offering incentives for employees to take up the vaccine or (unusually) mandating it, you would then use the policy to explain and communicate your approach, along with the terms of any incentives offered. For the majority of employers, a vaccination policy will not be important, but you may nonetheless find it helpful to explain the organisation’s stance on vaccination.

A vaccination policy may also help with handling workplace disputes involving vaccination. You could consider requesting employees not to ask each other about their vaccination status with a failure to comply being treated as a disciplinary matter. Similarly, employees who are spreading untrue vaccination myths could also face a disciplinary process outlined in the policy.

If you would like to discuss any of the issues addressed in this article or you need assistance in drafting a vaccination policy, then please do contact a member of our employment team who would be happy to help.


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