As the vaccination effort gathers pace, many employers are considering the knotty question of whether they can require unwilling employees to be vaccinated (or refuse to recruit the unvaccinated). This isn’t a simple issue.
A key point to consider is why the individual doesn’t want to be vaccinated. There may be all sorts of reasons ranging from a moral objection based on religion or belief, through simple reluctance to accept a vaccine developed so quickly, to those who believe social media scare stories. A refusal based on a religious or philosophical belief may be protected by discrimination law and, whilst such protection isn’t absolute, the onus would very much be on the employer to demonstrate that insisting on vaccination is a proportionate means of achieving a legitimate aim. There are considerable uncertainties here, especially given that the government has not chosen to make vaccination mandatory.
The other key factor is why the employer wants employees to be vaccinated. Whilst there is an obvious interest for employers in having employees who are less likely to become ill themselves and less likely to infect other staff or customers, this argument varies greatly in strength depending on the individual circumstances of employer and employee. The argument for vaccination is much weaker for e.g. a lone working employee who never or rarely comes in contact with others than it is for e.g. a care home worker who works regularly in close contact with vulnerable residents. Whilst we do not yet of course have any case law on the point and it is difficult to predict outcomes with any certainty, an Employment Judge may be reluctant to find a dismissal unfair where keeping the employee on clearly poses a material risk to the health and lives of care home residents, where a fair procedure has been followed and all other options have been explored.
Our top tips for employers looking to ensure staff are vaccinated
- Engage with employees early on. Explain any particular issues you may have in your workforce that may lead you to want to encourage vaccination. Seek to persuade employees first, rather than simply imposing vaccination as a requirement.
- Provide access to credible information about vaccination and safety e.g. from official NHS sources.
- Talk to individual employees about why they may not be keen to be vaccinated. Listen to what they have to say and consider their objections carefully. If may ultimately be necessary to accept some staff will be unvaccinated.
- Unless there is particular urgency (which will not be the case for most employers), take time. Vaccination is, after all, not available to most people at the moment and it may be that some who are currently unsure become more confident in vaccines as time passes.
- A fair procedure should be followed and dismissal should be a last resort if all other options fail. Dismissal often entails risk for the employer and no-one wants to be a test case. Ultimately the fairness or otherwise of a dismissal is likely to turn on the facts of that particular case. The test applied in most unfair dismissal cases is whether dismissal, in all the circumstances, was within the range of reasonable responses open to the employer; a point on which opinions often vary.
For help and support on anything covered in this insight please talk to one of our expert Employment team.