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Employment law

Can employers require COVID-19 vaccination?

With many queries surrounding whether employers can mandate COVID-19 vaccination, we review whether this is legal and what could happen if you’re opposed to vaccination.

09 June 2021

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What can employers require you to do concerning the vaccine?

There’s currently no legal requirement to have the COVID 19 vaccination in the UK. However, there has been significant media commentary around some employers seeking to enforce this upon their staff. The Public Health (Control of Disease) Act 1984, which applies in England and Wales, gives the government powers to prevent, control or mitigate the spread of an infection or contamination. However, it explicitly states that regulations cannot require a person to undertake medical treatment, including vaccination.

There have been suggestions that the government may make it compulsory for care home workers and frontline health workers to take the vaccine, but this is currently not the case.

But what can an employer do?

New employment offer

An employer may make a new job offer conditional on an employee having received a covid vaccination. This would then make this a contractual requirement.

An employee may then be required to provide evidence of having been vaccinated in order to satisfy the condition. Given that the government is offering the vaccine to individuals based on age groups, in the event of an employer insisting on a requirement to be vaccinated, younger employees are likely to be disadvantaged by such requirement and may well have grounds for an age discrimination claim. However, this would not apply once the vaccine has been rolled out to all age groups.

Current employment

There’s unlikely to be any existing contractual clause requiring vaccination to be taken. However, an employer may seek to require an employee to take the vaccine on the basis that it’s a reasonable instruction for health and safety or may seek to vary the existing contract of employment.

Whether such a request is reasonable will depend on several factors including the role the employee carries out, the workplace and the customers. If an employee deals with vulnerable clients face to face or has vulnerable colleagues, it may well be considered reasonable unless the role can be conducted in a different way or the risk reduced.

A refusal to carry out a reasonable instruction of getting vaccinated could lead to disciplinary action including dismissal.

A dismissal may lead to a claim of unfair dismissal depending on the employer’s reasoning and process followed and possible discrimination claims. This is an untested area of law that’s likely to develop in the coming years.

Do you have to tell your employer if you’ve received the vaccine?

Generally, there’s no obligation to inform your employer of health conditions or medical treatment. The Equality Act 2010, specifically prevents employer’s asking job applicants about medical conditions unless it will impact their ability to carry out work.

Your employer may ask you whether you have received the vaccination and unless this falls under the category of reasonable instructions discussed above or any other such obligation, you don’t have to disclose this if you choose not to.

Employees’ vaccination data will be classed as health information and as such amounts special category personal data.

For an employer to ask and retain information about this, the employer must have a lawful basis to do so.

Employers will therefore need to identify a legitimate interest and show that the processing is

necessary to achieve it, taking into account the employees’ interests, rights and freedoms under UK GDPR legislation.

Why might people oppose the vaccine?

As the vaccine roll-out continues, there has been a healthy uptake in people consenting to receive the vaccine, although analysis of NHS data reveals disparities between ethnic groups and poorer locations with lower take-up amongst black people and less-affluent areas.

A survey by YouGov found that some groups are sceptical of taking the vaccine due to the speed it has been rolled out and distrust in the government. Others are fearful of the long-term side effects which remain unknown.

Some may oppose taking the vaccine due to existing or underlying health conditions, pregnancy or religious or philosophical beliefs that they hold. Certain age groups are also not yet eligible to receive the vaccination.

The latest government guidance states that pregnant women are eligible for the vaccination and there doesn’t appear to be any complete religious opposition to the taking of the vaccine

subject to the contents used. It’s therefore unlikely that these will be compelling reasons for opposing the vaccine.

The reasons for not having the vaccination are likely to be an important factor in deciding whether an employer’s request or subsequent action is reasonable and justified.

If you’re experiencing an employment dispute and would like to receive expert legal advice on your circumstances, speak to one of our specialist employment solicitors today on 0330 041 5869 or contact us online and we’ll call you.

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