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How will employees’ rights be affected post lockdown?

March 16th 2021

Thinking it over with Carol Fish Director & Head of Serious and Catastrophic Injury…

After Prime Minister Boris Johnson set out his roadmap to ending lockdown in England, thoughts for many employers are turning to how they will bring their teams back into offices when restrictions ease.

The widespread administration of the vaccine in the UK is good news for many employers to help working life slowly return to normal over time.

But what do you do as an employer if one of your employees refuses to have the Covid-19 vaccine? Can an employer require its employees to have the vaccine?

That’s something Joanne Stronach, our vastly experienced Head of Employment Law and HRat Cartmell Shepherd Solicitors, is being asked by a range of employers.

The quick answer is that the Government has said that the vaccine is not a legal requirement and the Public Health (Control of Disease) Act 1984 prevents a person from being required to undertake medical treatment such as vaccinations. Therefore, it is not possible for employers to force their employees to have the vaccine.

If employers were to try to force their employees to be vaccinated, not only could it give rise to human rights concerns, but there could also be criminal implications. A vaccination requires an individual’s informed and voluntary consent.

So how should an employer try to deal with an employee who says they do not want the vaccine?

It is highly unlikely that having any vaccination will already be a specific requirement in an employee’s contract of employment or a condition of their employment. So can you make it one now? If that is done without the employee’s consent, it will be a unilateral variation to their terms and conditions of employment and may lead to a resignation and a claim for constructive unfair dismissal.

Could it be a reasonable management request that could be a disciplinary matter if they refuse? Or insisting that if they do not have the vaccine that they must be deployed elsewhere in the organisation? Employers need to be very careful here. If you have had the same employees working in the workplace using PPE and all the other Covid secure precautions you have put in place before the vaccine was approved and you risk assessed as being acceptable, what is the difference now for them to continue to work in the same way using the same precautions without being vaccinated?

ACAS guidance recommends that rather than trying to force employees to be vaccinated, employers should first discuss why the employee does not want the vaccine. Refusal can be for a number of different reasons such as religion, health concerns, fear or mistrust.

If someone chooses not to have the vaccine because of their disability or religion, then treating them less favourably or dismissing them because of their decision is likely to result in a claim for discrimination, for which the employee does not need to have two years continuous service.

If you believe, however, that their refusal is based on misinformation or a misconception, discuss their concerns with them but communicate with them carefully. Providing them with impartial, factual detailed information may help allay some of their concerns.

If an employee is dismissed for a refusal to be vaccinated, an employer may face claims for unfair dismissal and/or discrimination. We do not yet know whether the Employment Tribunals are likely to find any vaccine-related dismissals by employers to be reasonable.

This is an area where employers are advised to tread very carefully and to take legal advice on the specific circumstances of each case.

If you would like more information about the issues raised in this article, please contact Joanne Stronach on 01228 585716 or click here to send her an email.

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