I’m sure you have all seen the recent headlines ‘no jab, no job’ but in reality, can you require employees to have the vaccine? The short answer is no. Given that the government doesn’t have the power to require anyone to have the vaccine, employers certainly don’t.
But this does give rise to potentially complicated legal and ethical issues. For employers there is a balancing act between the rights of individuals to refuse a vaccine versus the duty of employers to provide a safe place for people to come to work. Particularly when the time comes for social distancing and PPE rules to be relaxed, employees will want to feel that when they enter the office they are not going to be placed at risk by people who are not vaccinated and could potentially bring the virus back into the office.
Currently, there are no statutory provisions that could force anyone to have the Covid-19 vaccine. In fact, the Public Health (Control of Disease) Act 1984 states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.
Employees obviously have the right to choose whether they have vaccine or not that that goes without saying but whether they have the right to refuse to declare it or not is a different issue
Where employers seek to make it clear that they expect staff to obtain the jab or face disciplinary, they are opening themselves up to significant risk of a claim, particularly if they operate in sales, office-based sectors and there are no real solid health and safety reasons for doing so.
The situation may be different for settings for example if you regularly see vulnerable clients. It could be argued that health and safety obligations are such that a jab is a necessary condition for continued employment. However, requiring new staff to be vaccinated before offering them a role could still be unlawful and refusal to offer a job if someone has not been vaccinated could give rise to discrimination claims.
It’s very important not to pressure any employee to take the vaccine and you should be very wary about potential discrimination issues on the grounds of religious belief, disability and age.
So, what should employers do?
Employers have a duty to ensure as far as ‘reasonably practicable’ the health and safety of their employees at work. Some the of the steps employers should take include:
- Consulting and communicating the benefits of immunisation to encourage the take up of the vaccine
- Listening to any concerns their employees have regarding the vaccination.
- ensure effective infection control measures are in place, including social distancing, thorough cleaning and regular testing
- Where possible, supporting home working whilst immunity and vaccination become more widespread.
For further advice and support on the right approach for your firm please do not hesitate to contact me at Jo.firstname.lastname@example.org