Employment law and vaccinations

As the UK government focusses its efforts toward vaccinating UK citizens, those individuals commonly referred to as “antivaxxers” have surfaced in opposition to the government’s plans. For those unaware of the term “antivaxxers”, the Cambridge Dictionary defines an “Antivaxxer” as “someone who does not agree with vaccinating people (giving them injections to prevent disease”.

A YouGov survey published in November 2020 found that as many as one in three people say they are unlikely to take the vaccine. Their reasons range from believing they do not need the vaccine to a lack of trust in the safety of vaccine.

Considerations for employers

In light of these stats, this article focusses on some the key considerations that employers must keep at the forefront when putting plans in place for a safe return to the workplace.

Health & Safety Law

Employers have a general obligation under the Health and Safety at Work Act to ensure a safe workplace. Non-compliance with these obligations can result in a criminal offence being committed and those involved can be prosecuted by way of a fine or custodial sentence in the most serious of offences.

Is ‘no jag no job’ legal?

This creates a real concern for those employers with employees unwilling or unable to take the vaccine. These employees are not breaking any laws by refusing to take the vaccine but employers still need to ensure the workplace is safe.  

Employers may feel that the risk of having “antivaxxers” at work is high as they may be transmit the virus to other colleagues, especially those with underlying health conditions. Alternatively, an employer may have employees who are not able to take the vaccine due to medical reasons. In any event, vaccines are not 100% effective after all.

Employment Law considerations

Employers need to tread very carefully if they plan to consider dismissals in this situation. If an employee is dismissed, they may claim they were unfairly dismissed. As noted above, they are not breaking any laws, so what is the reason for dismissal?

Two potentially fair reasons for dismissal are misconduct and “some other substantial reason”. In any event, could an employee be insubordinate by refusing an instruction to take the vaccine? Is the employer’s instruction to take the vaccine a reasonable one? Is the employee’s refusal to take the vaccine justified?

The Equality Act

An employer subject to an unfair dismissal claim may face an argument from an employee claiming they were dismissed because they held a “protected belief” under the Equality Act 2010.

The explanatory notes to the Equality Act 2010 provide that if an employee is to successfully claim they hold a protected belief, they have to prove that their belief is “worthy of respect in a democratic society, compatible with human dignity and not conflict with the fundamental rights of others”.

Could an employee therefore successfully claim that they hold a protected belief in that they actively believe that the vaccine is unsafe and may do them harm? Is this belief worthy of respect in a democratic society? Does the belief conflict with the fundamental rights of others (i.e. their own safety at work)?

Striking a balance with duty of care

A employer has a duty toward all of their employees but must strike a balance between those who want to work but cannot take the vaccine due to medical reasons, those for whom the vaccine is ineffective and are more prone to catching the virus and those who want to return to work but do not want to take the vaccine due to their beliefs.

How can RCCW help?

We understand that this is a complicated area with many questions left unanswered and a host of other implications for employers to consider. As an employer, it is crucial that you understand your obligations and protect your business by seeking specialist legal advice.

Our employment team at RCCW recognise that every situation is unique and needs a tailored approach. Please do not hesitate to get in touch at EmploymentDeptEnqs@raeburns.co.uk if you require any assistance.

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