With the roll out of the Coronavirus vaccines across the UK gaining momentum and the next set of target groups beginning to receive their offer of a vaccine, as an employer, have you started to think about how you are going to deal with the employee who refuses to have the vaccine?

 

The law appears to be clear, that there are no statutory provisions that could force individuals to become vaccinated. The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.

 

Businesses are no doubt going to have to deal with the employee/s who refuses to be vaccinated in the coming weeks if they have not already done so.  There are several reasons why an employee may refuse a vaccine such as:

 

  • Religious grounds
  • A genuine concern regarding side effects and the testing program undertaken before approving the vaccine
  • Medical reasons

 

That said – this leaves employers with a dilemma. UK health and safety at work legislation imposes duties on employers which could be seen as a contradiction to The Public Health (Control of Disease) Act 1984. “The Health and Safety at Work Act 1974, Section 2 & 3”, places specific duties on employers with regard to their employees and anyone else who could be affected by their work, as not to expose them to health or safety risks.

 

Workplaces however may have a specific argument to support vaccination as a precondition of returning to work on health and safety grounds. For example, care sector employers must ensure that healthcare workers, such as doctors, nursing, and care staff, do not pose a risk of infection to patients, or vice versa.  This includes an obligation to ensure such workers are vaccinated against common communicable infections and biological hazards, with the exposure risks associated with a person’s role determining which vaccinations are necessary.

 

The article by The Conversation “No Jab, No Job – why your employer can’t sack you for not taking the COVID vaccine in the UK” presents a no-nonsense explanation point of view, see the following link:

 

https://theconversation.com/no-jab-no-job-why-your-employer-cant-sack-you-for-not-taking-the-covid-vaccine-in-uk-154403

 

It appears straightforward from a legal stance that the UK current legislation would make it unlawful for employers to adopt a No Jab, No Job policy.  It would be an interesting dilemma for the UK Government if every employer adopted the view that they would adopt a No Jab, No Job policy. Would this pressure the Government to produce clearer guidance or even change legislation in the UK to support this?

 

It is clear that employers need to start preparing for the potential dilemma faced and should therefore anticipate the need to undertake specific Risk Assessments to evidence why a COVID vaccination is required to return to work in contrast to all the other COVID statutory secure arrangements which should already be in place. Ongoing discussion with all employees is critical as the vaccination program in the UK progresses.

 

If you have any concerns or questions around this, please call our team of experts on 01242 323864.