Can businesses require employees to get a vaccination?
As the UK government has begun the roll-out of covid-19 vaccinations, businesses may be beginning to wonder if they can and/or should require employees and workers to get a vaccination.
This question is not entirely new as it often arises with the onset of every flu season. The answer is typically ‘no, you cannot insist that employees get a vaccination’. However, as has been the case with all things related to COVID-19, this vaccination may be regarded differently. There are a number of issues that may arise in relation to vaccination:
- Employers have duties under health and safety legislation to protect employees’ health and to provide safe working environments, not only for employees but for any person who comes on to the premises. In some workplaces, employers may be required under this duty to offer to provide vaccinations for those at risk, however an employee might still be able to refuse. Health information is a special category of personal data and employers have a duty to handle any such data with care and in accordance with data protection legislation. Even when asking employees if they have been vaccinated, businesses must obtain no further information than necessary and must handle the information carefully.
- If the requirement to get vaccinated is contractual, an employee’s refusal may be in breach of contract. Such a term is not likely to exist in most employment contracts and to introduce such a term, employers would need to obtain employees’ consent to change their terms of conditions of employment. Imposing a change without consent may lead to constructive dismissal and breach of contract claims.
- Dismissing employees for refusing to get a vaccination could amount to an unfair dismissal. The requirement to be vaccinated would need to be a reasonable and lawful direction for any refusal by an employee to justify a dismissal.
- Employees may bring discrimination claims if the basis of their refusal is on grounds of health, or religious or philosophical beliefs. A serious phobia of needles (not simply a case of not liking needles) might even be considered a disability under the Equality Act.
- If employees are compelled to get a vaccine, this could lead to a possible breach of human rights in relation to the right to respect for private and family life under the European Convention on Human Rights.
- Vaccinating employees without their consent could even lead to criminal charges.
There is typically no obligation on employers to provide vaccinations for their employees. Under health and safety legislation, employers are required to take all reasonable, practicable steps to reduce workplace risks.
Employers may wish to recommend or encourage employees to get vaccinated by providing them with further information. In the meantime, businesses may also consider workplace testing, compliance with health and safety guidelines, and social distancing and safe work practices as recommended by BEIS COVID-19 in the workplace.
Given the nature of all things related to COVID-19, it would not be unlikely for the situation around vaccines to evolve. As the vaccines become more available to the general public in the months to come, we may even see further public health and government guidance on how they are to be distributed, whether vaccination will become mandatory and whether any restrictions will be lifted for those who have been vaccinated.Back to news list