COVID-19: Can UK employers require staff to be vaccinated?

The UK government’s vaccination programme has gathered momentum. With over 15 million people having now received their first dose of the vaccine, it is the fastest and largest vaccination campaign in history.

Whilst welcomed by many, the government’s ambitious vaccination programme raises a number of legal issues from an employment law perspective and a key concern for many employers and employees is likely to be whether employers can require their employees to be vaccinated.

Mandatory vaccination as a “reasonable instruction”

In an employment contract, there is an implied term that employees will follow all lawful and reasonable instructions given to them by their employer. If an employee fails to follow reasonable instructions their employer may be able to dismiss the employee on grounds of misconduct.

Whether or not an instruction to take the vaccine is reasonable will depend on the nature of the job and the risk of exposure to the virus in the workplace. It is therefore likely to be reasonable for employers in the health care or social care sectors to request that employees take the vaccine as they are likely to come into close contact with vulnerable people on a daily-basis. Equally, where a job requires frequent travel, it may be reasonable to request the employee to be vaccinated as they may not otherwise be able to do their job. On the other hand, it may be less reasonable for an employer within the professional services sector to request that employees take the vaccine if they are able to easily perform their job from home and vaccination will not affect their ability to carry out their role.

Can I dismiss an employee who refuses to take the vaccine?

An employee who refuses to comply with a reasonable instruction to be vaccinated may be subject to disciplinary action, including dismissal. Nevertheless, it is important that the dismissal process is fair and the employer will need to establish that the refusal of vaccination is unreasonable, which may not be possible in every case.

Employers should be extremely careful where an employee’s refusal is related to a protected characteristic under the Equality Act 2010. For example, if the employee has a medical condition that amounts to a medical disability, is pregnant (or trying to become pregnant) or their religious beliefs prohibit them receiving the vaccine. Such employees may file a discrimination claim, issue a claim for unfair dismissal (in the event they are dismissed) or resign and subsequently claim constructive dismissal.

Where an employee’s refusal to receive the vaccine relates to a protected characteristic, employers should consider whether any alternative measures could be used to meet their health and safety obligations, such as working from home or providing employees with suitable PPE.

What should employers do now?

Given the potential risks surrounding unfair and constructive dismissal and discrimination, employers should carefully consider whether it is appropriate to require that employees are vaccinated. That being said, employers have a basic obligation to take reasonable steps to protect the health, safety and welfare of their employees under the Health and Safety at Work Act 1974. Therefore, employers should consider the vaccine as part of any Covid-19 risk assessments carried out and, at the very least, ensure staff have access to reliable information about the vaccine, so that they are able to make an informed decision as to whether to take the vaccine or not.