Can employers force employees to have the Covid vaccination?

If you are an employer, this is likely to be a question that you have asked and debated over the last couple of months. The short answer to this question is no, you cannot force employees to receive the vaccine, however you may be able to take measures in relation to their employment if they refuse to do so.

Essentially, this comes down to a balancing act between ensuring that you comply with your duty to protect the health and safety of your employees and anyone on your premises versus the rights of the employees to refuse the vaccine.

Requiring employees to be vaccinated raises a number of issues which will need to be carefully considered.

Contractual clauses

You may be considering inserting a contractual clause into employment contracts to compel employees to receive the vaccine. You should be wary of this approach as you will need to be able to justify that doing so would be fair and reasonable and in any event, employers will not be in a position to force employees to have the vaccine as doing so would amount to an infringement of human rights.

Including an immunisation clause into the contract may give rise to potential claims for unfair or constructive dismissal if an employee refuses to comply with this clause.

Mandating the vaccine could also give rise to potential discrimination claims if there is any differentiation in treatment between those who have or have not been vaccinated.  This is also the case where the reason for the employees’ refusal to be vaccinated is due to a protected characteristic i.e. pregnancy, religious belief, disability.

Encouraging employees to receive the vaccine

A more sensible approach would be to consult and communicate the benefits of the vaccine to employees to encourage them to take this up. Employers may wish to consider preparing a non-contractual policy outlining the benefits of having the vaccine and setting out the arrangements for obtaining the vaccine with the employees consent (where applicable in certain sectors).

It is important to ensure effective communication with engagement with employees in relation to health and safety issues such as the vaccine, and that you explain the reasons why employees are being encouraged to take the vaccine.

You should listen to any concerns that individual employees may have regarding the vaccination and where possible, support home working whilst this continues to be recommended by the Government.

However, a lot will depend upon the nature of the business which you are seeking to protect in requiring employees to have the vaccine. For example, in a health and social care setting, employers may be able to issue a reasonable instruction to employees to take the vaccine as refusal to do so could put vulnerable people at risk. This will not be the same for all sectors and employers should consider this carefully.

What should be included in a vaccine policy?

We suggest that you consider including the following:-

1. Background and the Government’s position on the vaccine;
2. Health benefits of having the vaccine (with links to relevant Government guidance);
3. Potential health risks (with links to relevant Government guidance);
4. Vaccine training;
5. Human rights and discrimination concerns;
6. Covid-secure measures which employees must adhere to in any event such as testing, mask wearing, social distancing, hand-washing and self-isolation where required; and
7. That the policy will be maintained and reviewed frequently in line with Government guidance and policy.

How can we assist you?

If you would like any assistance, please contact our experienced Employment Team on 01202 525333 or email our Employment Partner, Kate Brooks at kate.brooks@ellisjones.co.uk.