The debate on whether to make the new COVID-19 vaccination mandatory for the public at large, not just employees, is a global one and different countries will reach different decisions. The UK Government has not to date made it mandatory for anyone and so there is no statutory basis on which an employer could potentially rely to compel an employee to get the vaccine.
The employment relationship is also governed by contract law which could be used as leverage. However, it is unlikely many employers will have a clause to cover this scenario. To introduce one would require either employee consent or a strong business case, but the whole purpose of exploring mandatory vaccination is to deal with those who won’t consent or who will argue that the disadvantages or detriment to them outweigh the business case.
In any event, whether you have a sufficiently drafted contractual clause or not, most commentators would agree that mandatory vaccination could risk a plethora of tribunal claims under the laws of unfair dismissal, discrimination, human rights and health and safety. Top of the list are considerations around diversity, pregnancy and how religion and belief might impact on a person’s choice. There would of course also be criminal liabilities for assault if an employer was considered to have physically enforced (or overseen such) vaccinations, though it is hard to imagine many employers in that scenario.
To avoid falling foul of the law, employers should avoid blanket policies and where possible, make decisions based on the facts of each case. It should also be remembered that vaccinations will not be the only means of controlling risk and in some situations, social distancing and hygiene measures may suffice.
If after careful risk assessment and ruling out all other measures, an employer requires an employee carrying out their daily tasks to be vaccinated, such as a carer, how should they treat an employee who chooses not to be vaccinated? Could they fairly dismiss such an employee? Employers should consider the circumstances and beliefs of that particular employee before making any decisions in that regard and always follow a fair procedure. Until case law is developed in this area or the government legislates, this will be a tricky situation and employers will need to tread carefully.
