Melvyn Harris: Can an employer compel its employees to have a Covid 19 vaccination?
Melvyn Harris explores whether employers can compel their employees to have the newly approved Covid 19 vaccine.
Now that the first Covid 19 vaccine has been approved today for use in the UK, employers will want to know if they can require their employees to be vaccinated. The short answer to that question is that it is very unlikely that they can do so. Not only is there no express legal provision empowering employers to force their employees to be vaccinated but there is no statutory right for the UK government to compel members of the public to be vaccinated against anything. While the Public Health (Control of Disease) Act 1984 gives the government power to prevent, control, or mitigate the spread of a contamination or an infection, that legislation expressly provides that individuals must not be compelled to undergo any vaccination.
The Green Book issued by the government contains the latest information on vaccines and vaccine procedures. It devotes a complete chapter to consent (Chapter 2) and states at the very beginning “Consent must be obtained before starting any treatment or physical investigation or before providing personal care for a patient. This includes the administration of all vaccines.” Further on in that chapter it says that consent must be given voluntarily and freely.
In the circumstances, and until at the very least the government changes the law, it is considered extremely unlikely that employers can compel their staff to be vaccinated against Covid 19. Even if the government were minded to try to change the current legislation by making vaccination compulsory, it would undoubtedly face serious legal challenges under human rights laws.
The considerable degree of resistance to vaccination against Covid 19 demonstrated in recent surveys makes it likely that many employees will not want to be vaccinated. Any requirement by the employer that only vaccinated employees can return to the workplace might well fall foul of the implied term in all employment contracts of mutual trust and confidence by reason that it would in effect be compelling employees to have a vaccination for which there is no legal right.
Some employees may well have valid reasons for not wanting to be vaccinated. Some of those reasons could relate to protected characteristics under equality legislation and debarring employees from the workplace in such circumstances might lead to claims of discrimination and/or of constructive unfair dismissal if the employee were to resign. One example could be Jewish or Muslim employees who might refuse vaccination if the product contained gelatin from pork which they avoid on religious grounds. Another could be an employee who is disabled by reason of a genetic condition or cancer who thereby had a weakened immune system and as such should not be vaccinated because of their medical situation.
Problems may arise where employees who have been vaccinated refuse to work in close proximity with those who have not, citing the risk of being infected. Such a situation will need to be carefully handled but it is considered that, since all vaccines that have or will be approved have an extremely high chance of protecting against Covid 19 infection, it would be unreasonable for such an employee to maintain their refusal to work with an unvaccinated colleague.
Where the employment is one where there is an increased risk of contracting Covid 19 such as medical staff or those working in care homes, there is the possibility that the employer could be under a duty to offer (but not compel) vaccination for health and safety reasons under the Health and Safety at Work Act 1974.
It is expected that the government will provide guidance about vaccination against Covid 19 in the near future which it is hoped will included guidance for employers but, until then, the position remains that it is very unlikely that an employer can compel any of its employee to be vaccinated.
Melvyn specialises in all aspects of employment law including unfair dismissal, TUPE, advising on and drafting employment contracts, and has a particular interest in discrimination issues. He advises and represents both Claimants and Respondents in the private and public sectors and regularly appears in Employment Tribunals and the EAT. Click here to view Melvyn's profile.