No jab, no job – can businesses force employees to have the Covid vaccine?

Joan Pettingill Joan Pettingill 19 February 2021

At the latest count the NHS has delivered 15 million vaccinations as its nationwide programme now focusses on people over-65.

While some in this age group are retired, or looking at retirement soon, what rights do employers have about making the jab compulsory for employees as bosses attempt to get their businesses back on track?

Joan Pettingill, director of employment law and head of HR services at Wake Smith Solicitors looks at whether businesses can force their staff to get the jab, as deaths from the virus tip the 110,000 mark in the UK.

“As the law stands, individuals cannot be forced to have a vaccination. The Public Health (Control of Disease) Act 1984 says members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.

“As the debate around mandatory vaccinations rears its head, essentially, the risk for employers’ insisting on staff having the vaccine, centres around discrimination claims.

“Any Government-led compulsory vaccination programme could bring objections about individual liberty and human rights. Article 8 of the European Convention on Human Rights protects people from being interfered with physically or psychologically and includes mandatory vaccinations.”

Potential legal issues around vaccinations for work include:

If a thorough medical examination clause appears in a contract of employment, it could be relied upon. However, this is fraught with risk, and freely given consent is required for any medical intervention.

Forcing anyone to receive a vaccine injection under duress, under UK law, could constitute an unlawful injury. A vaccination requires an individual’s informed and voluntary consent.

An anti-vaxxers’ stance could amount to a protected philosophical belief under the Equality Act 2010 if their belief was established to be genuinely held and worthy of respect, then they may find success at a tribunal.

This act also protects religious discrimination - many vaccines use pig gelatine, raising problems for several religious groups, and vegans.

If an employee’s refusal to be vaccinated due to a disability/protected religious/philosophical belief, results in disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim, and claim constructive unfair dismissal if they resign in protest.

Employers do have a duty to ensure a safe working environment under the Health and Safety at Work Act 1974. Therefore, requiring a care home employee to be vaccinated, and disciplining them if they refuse, could be argued as reasonable because of the high-risk nature of the work, ultimately justifying dismissal or disciplinary action.

Joan added: “Some bosses are now saying a compulsory workplace vaccination would avoid further lockdowns and help the economy get back up and running again; that they are happy to pay for their staff to have the jab privately if possible, and will rewrite employee contracts to include a “No Jab, No Job” policy for new staff.”

Joan concludes: “This is an interesting debate. The consequences for the economy and society, with three national lockdowns, have certainly had negative mental, physical and financial up shots. However, the priority for organisations must be to keep people, including staff and customers, as safe as possible.

“An alternative way forwards for business would be to help employees to make informed choices about the vaccine by sharing impartial, factual information.”

For further information or advice on our upcoming free employment law update on 17 March, training packages and any employment law matters contact Joan Pettingill at Wake Smith Solicitors at [email protected] or call 0114 224 2087.

To sign up for Wake Smith’s WorkSense employment law and HR updates click here.

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