HR have several questions to ponder on the issue of whether employers can insist that staff take the Covid vaccine when it is offered to them.
At present there is no legal basis for forcing people to get vaccinated and therefore reliance must be on persuading them of the safety of the vaccine and the fact that it is in their interest to accept it.
The government has issued guidance to frontline healthcare workers specifying the benefits of being vaccinated - reduced chance of catching Covid or becoming seriously unwell if they do and less likelihood of infecting their friends, family and any vulnerable people in their care. As the government are unable to legally compel people to be vaccinated, it is means that employers cannot force the issue either.
However, Section 2 of the Health and Safety at Work Act 1974 requires employers to take all reasonably practicable steps to reduce workplace risks to their lowest practicable level. To reduce the risk of catching or spreading the virus to others at work, staff should be strongly encouraged to get vaccinated. If it can be shown that asking staff to accept the vaccine is a reasonable management instruction and it is refused, disciplinary action may be justified.
Employment lawyers do not agree about whether it is a reasonable request to ask staff to be vaccinated and then to act against anyone who refuses. The argument hinges on whether vaccination will protect other members of staff or people they are in contact with - but advice from both the World Health Organisation (WHO) and the government is that vaccinated people are much less likely to transmit the virus to others, making it likely to be reasonable to instruct frontline staff to be vaccinated.
Consideration also needs to be given to the fact that some staff will not yet have been offered the vaccine - but advance warning to them of the company approach to ‘jab or no jab’ would be sensible.
Staff may be worried about having the vaccine - this is referred to by the World Health Organisation as ‘vaccine hesitancy’ and is considered as one of the top ten threats to global health. This should be discussed with the people concerned and advice given to them as to where they can obtain reliable, impartial information before any sort of action is instigated against them.
Some of the staff who refuse to be vaccinated will be protected under the Equality Act 2010 - which covers religion; disapproval of the vaccine because animal products were used in the development and race, age, sex and disability - and if challenged, employers will have to justify their approach as it will potentially be indirectly discriminatory to insist on vaccination. Other solutions, such as permanent homeworking, could be considered.
Before dismissal, employees should be warned and given a final opportunity to comply. Dismissal should be on notice and ideally, legal advice should be sought before any action is taken against anyone refusing to be vaccinated.
Much depends on whether asking them to be vaccinated is a reasonable management instruction.
