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Can an employer make the COVID-19 vaccination mandatory for employees?

The UK has a breakthrough with Covid-19 with the roll out of a vaccine, and we will see it rolled out over several months, targeting the most vulnerable first. The Government have not made it mandatory to get the vaccine, so it will be a personal choice as to whether somebody choses to receive it or not.

Consequently, a question that is coming up for employers, is whether an employer can compel an employee to have the vaccine, especially those employers operating in Health and Social Care, and other critical key workers and business.

The Government has not made any statutory provision for the vaccine to be mandatory. To attempt to force employees to take the Covid-19 vaccine risks the actions being considered unreasonable and therefore unlawful in an unfair or constructive dismissal claim. However, these are unprecedented times, and the law has not been tested so it is difficult to give a definitive position. There are several pieces of employment legislation that need considering when assessing the legality of such action.

At this early stage and given the Government is not forcing people to become vaccinated, on balance it would seem as though it would be difficult for an employer to force an employee to get vaccinated. How can an Employer require an employee to take the vaccine if the Government are not requiring people take it? This is a very sensitive matter, and much will depend on the facts in each case, along with Government guidance, that will hopefully be published.

Highlighted below are the various pieces of employment legislation that must be considered, however, ultimately, it will be for a tribunal judge to assess whether any dismissal or resignation is lawful or not.

Data Protection Act 2018

This will be a key consideration as consent will need to be gained by the employee. How do you deal with the practical issue of an employee not giving their consent as you cannot physically force somebody to do it?

Human Rights

Given there is no legal basis for mandatory vaccines since the Government have not brought in any statutory provision, it is doubtful therefore that requiring employees would be compatible with the Human Rights Act.

Equality Act 2010

In terms of the Equality Act 2010, there are questions around whether a refusal to be vaccinated is linked to a belief. There are religious groups that disapprove of vaccinations on the grounds that they interfere with divine providence.

Health and Safety at Work Act 1974, section 2

Section 2 of the Act requires an employer to take all reasonably practicable steps to reduce workplace risks to their lowest level. Whether it is possible to form an argument that by requiring employees to take the vaccine, the organisation is conforming to their responsibilities under health and safety legislation is not clear.

Health and Safety at Work Act 1974, Section 7

Section 7 of the Act makes the failure to take all reasonably practicable steps to reduce workplace risks to their lowest level a criminal offence. It also places employees under duty to co-operate with their employee as is reasonably necessary. However, as already mentioned, this is not straightforward since the Government have announced that it is not to be mandatory. So again, we need to await further clarity.

Health and Safety Law

So, whilst there may be legal routes to argue a case for requiring employees (under Health and Safety law), we do need to wait for guidance and perhaps for the matter to be tested before we can take a clearer position on it.

You hope that all employees want to take the vaccine voluntarily, because of the nature of their role and to help them return to a more normal life personally, but there may be some people who remain cautious and unsure. Government specific guidance on the vaccine for healthcare workers and those operating in care homes will be available.

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