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Can we ask our staff to have the COVID-19 vaccine?
Written by 5 February 2021
With the UK’s vaccination programme now being rolled out and picking up pace, this is a question that more and more employers are starting to ask. So is it legal and if so, should you consider it?
As the law stands, forcing an individual to have a coronavirus vaccine against their will amounts to a criminal assault and a civil trespass against the person. There are also human rights implications.
Amending employment contracts
Changing an existing contract of employment to make vaccination a contractual requirement is problematic and presents a number of issues. You would need the consent of the employee and without which, the only solution would be unilateral variation of the contract, or go through a dismissal and re-employment process.
However, should the employee resign in response to the change in their contract, this course of action creates the risk of constructive dismissal claims. Dismissal and re-employment carries the risk of an action for unfair dismissal. Both these possibilities only arise if the individual has been employed for two or more years. You would need to be able to show that the requirement to have a vaccine was a reasonable one – which is highly questionable - and that a fair dismissal process was followed.
There’s also the risk of unlawful discrimination allegations under the Equality Act 2010 based on a protected characteristic if the refusal to be vaccinated, is due to examples such as pregnancy or breastfeeding, religious reasons, disability or ethnic veganism. Those with strong ‘anti-vax’ beliefs may be able to be protected by the legislation if they can demonstrate that their reason amounts to a philosophical belief (yet to be tested at tribunals).
Continue to manage your risks
Taking into account all of the above, a process of ‘encouragement’ may be more desirable. From a wider risk management perspective, it’s worth bearing in mind the reputational risk from taking a hard-line approach. Some firms have already faced a backlash on social media for suggesting that they plan to go down this route.
You should continue to keep your COVID-19 Risk Assessment under regular review, and bear in mind that at this stage, the vaccine is not expected to completely prevent transmission of the virus. COVID-19 is likely to become endemic and rise in the winter months, in the same way as traditional influenza does every year.
Obviously the potential consequences of infection – particularly amongst older workers or those with underlying health conditions – is greater. As such, it’s anticipated that organisations will continue to maintain some of the precautions introduced last year (e.g. hand sanitiser, social distancing, robust cleaning regimes and adequate ventilation).
For more specific advice on this complex area in relation to your own organisation, we recommend you speak with an HR professional. For further information on maintaining a healthy and safe workplace and mitigating against risk, speak to us on 0330 008 5555 or email firstname.lastname@example.org.
Source: Indicator - FL Memo Ltd | Email bulletin
I am a Director of Sutton Winson Consultancy Services Ltd, which delivers a range of risk management solutions. I joined Sutton Winson in January 2000 and have derived a great deal of satisfaction from helping our clients achieve significantly preferable insurance terms, and other financial benefits, by embracing proactive risk management.
I am a Chartered Member of the Institute of Occupational Safety and Health (CMIOSH), a member of the Business Continuity Institute (BCI), a Chartered Insurance Risk Manager and hold the FCII (Fellowship of the Chartered Insurance Institute).
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