Employment Law: Employers and COVID-19 Vaccine | February 2021

Employment Law: Employers and COVID-19 Vaccine | February 2021

It is understandable that employers will want to encourage their staff to take up the offer of the COVID-19 vaccine, however a key issue coming to light since the roll out of the vaccine programme, is that while the government has been clear that vaccination will not be a legal requirement - can an employer insist on an employee having the vaccine prior to returning to work?

The question itself raises both an ethical and a legal issue for the employer and this Employment Law update is a summary of the key important issues on this topic.

The approach to be taken by employers will vary depending on many things, including the industry/sector and the individual circumstances of the employee. Whilst there will be these different approaches, the most appropriate initially will be one of encouragement to have the vaccine rather than requirement.

It should also be noted that there is separate guidance from the NHS on the vaccine to employees who are pregnant or breastfeeding.

Can the employer insist?

If the employer were to insist that employees have the vaccine, this could in all probability become a human rights issue and potentially be supported by the Equality Act 2010, where the argument of philosophical belief, health or religious discrimination could be made under a direct or indirect discrimination claim. Therefore, insisting on employees to be vaccinated will be down to individual employers/sectors given that a refusal could, in this instance, most likely lead to dismissal.

However, if this is the stance taken by the employer and it is deemed a reasonable instruction given the role of the employee and the potential to put vulnerable people at risk, then this could be objectively justified in achieving a legitimate aim. The employer however would be advised to consider in the first instance other alternatives to dismissal, such as relocating to a different job role where this is an option and where this does not amount to a detriment.

Whatever the decision employers take, the need to think about how they will justify this and the impact it may have on all concerned will require serious consideration.

What can the employer do?

As highlighted earlier, encouraging employees to have the vaccine will be the most appropriate position to take and will be a strategy for the vast majority of employers and there are a number of things that employers can do to support this:

  • Talk with employees about the vaccine and share the benefits of being vaccinated;
  • Provide access to accurate and credible information about the vaccine to allow employees to make an informed decision about it themselves;
  • Consider allowing employees to have the vaccine administered during working hours without loss of pay;
  • Under health and safety law, employers have a legal obligation to provide a safe place of work - carry out risk assessments and implement measures to minimise any risks identified;
  • If an employer decides it is necessary for employees to be vaccinated, they should agree it with the employees or the workplace's recognised trade union.

Further useful information on this subject can be found at the following:

If you have any HR issues and would like to talk them through with our team, please don't hesitate to contact us.

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