In depth

Vaccinations: can you make them compulsory?

Gateley Legal

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As the increased spread of the new COVID-19 variant had led yet again to a nationwide lockdown it looks more and more likely that the majority of businesses will only be able to operate normally again when vaccinations have been rolled out. 

The latest Government announcement is that all adults will be offered a vaccine by Autumn 2021. 

This suggests that work will hopefully be back to normal at that point, but one question we are being asked more and more is what employers can do if employees refuse to get vaccinated? 

The guidance from ACAS Working Safely During Coronavirus states unsurprisingly that employers should support staff in getting the coronavirus (COVID-19) vaccine. It however also suggests that employers cannot force staff to be vaccinated.

Wouldn’t it be a reasonable instruction on health and safety grounds to encourage employees to be vaccinated? 

Probably, but like with many issues in employment there may be some cases where the employee will have a good reason for saying ‘no’. It will therefore be important to listen to employees’ concerns and be sensitive towards individual situations. 

It might be that some employees may have health concerns, for example they may have allergies or their reluctance to have the vaccination may be due to concerns about the impact on their pregnancy. Other employees may have concerns that are linked to a disability or religious belief.  Taking action against an employee for refusing to get vaccinated in those circumstances could lead to a claim of discrimination. Consideration would have to be given to their objections and whether given the impact on the individual the policy would be justified. A balance has to taken between the need for the business to have the employee vaccinated and the reasons for the employee’s refusal. The greater the need, the easier it will be to justify the requirement.

If having taken into account the employee’s concerns it is decided that it is necessary for the employee to have the vaccination the reasons why should be explained to the individual. Take for example where it’s necessary for someone to do their job because they have to travel to other sites where it is a condition that all visitors have vaccinations.  Ultimately, it is possible that where an employee refuses vaccination dismissal may be justified, but only if all other options are considered in relation to sanctions and taking into account the availability of other roles.

Do you have any queries regarding the guidance on employee vaccination?

For more information regarding the guidance around the employer's ability to make vaccinations compulsory, please contact our experts listed below.

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