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The government's Covid-19 vaccination programme is being watched with intense interest.  This much-touted key to the end of lockdown is also generating lots of queries about whether employers can require employees to be vaccinated, and what they will be able to do if people refuse.

Given that we've had quite a few queries about employees refusing tests, it's probable that some will also refuse the vaccine.

The vaccination is being rolled out in stages. It was recently announced that from around mid-April those in the 40 to 49 year age bracket will be invited to have the vaccine.  It will then be offered to those aged 30 to 39, and finally to those aged 18 to 29.  It's currently anticipated that people falling within these age groups will be vaccinated by the end of July.  What this does mean is that it's currently not realistic to expect the majority of staff to have been offered the vaccine until the late summer.

Recently the press covered the story that Pimlico Plumbers will make the vaccine compulsory for their staff, and they are certainly not alone. Many employers appear to wish to make the vaccination compulsory, but will they be able to do so?

It may be possible for an employer, having carried out risk and equality impact assessments, to take the view with staff that having a vaccine is the most reasonable way of mitigating the risk of Covid-19.  The matter would be tested if an employee refused and challenged the decision, but until that happens we have no way of knowing whether this would be considered reasonable or not.

In our view it is open to employers to legitimately consider taking this position.  We think that this would particularly be the case where employees are working in contact with the general public.  Such a policy is not without risk of course as there will be other issues to consider, such as any side effects or long-term effects of the vaccination (if any transpire) as well as potential claims that those reluctant to receive the vaccination could bring. 

It may be that an employee could argue that a mandatory requirement to vaccinate is discriminatory. Will being an "anti-vaxxer" be capable of being a religion or belief that gives someone protection under the Equality Act 2010?  This is unlikely, however some employees may have religious objections to having the vaccine; some vegan employees may object if the vaccine contains animal products and employees with certain medical conditions may be advised against or choose not to take the vaccine.  This means that mandatory vaccination policies may be discriminatory unless they can be justified.  In certain circumstances this may be difficult.

If employers decide not to go down the mandatory vaccination route, it will certainly be open to them to actively encourage staff to be vaccinated, and to explain the workplace benefits that vaccination will bring. It would also be a good idea to implement paid time off to enable employees to be vaccinated so that they feel incentivised to do it.

If an employer wishes to implement mandatory vaccination what happens if an employee refuses the vaccine?  Would it be possible to dismiss the employee in these circumstances?  This would certainly lay the employer open to potential unfair dismissal claims or claims for constructive dismissal on the basis that the instruction to take the vaccine is unreasonable. As employers don't generally require employees to have flu jabs, or indeed other jabs, could they successfully argue that making a Covid-19 jab compulsory is justified?

About 60% of the employers who have responded to our surveys have said that they are likely to put in place a requirement for employees to be vaccinated, especially where they have customer-facing staff. It is possible for an employer to introduce this, but each individual person's circumstances would need to be considered carefully, especially if they don't want to receive the vaccine. While it's early days to decide on this, it's a good idea for employers who want to introduce a policy requiring staff to be vaccinated to think through the issues, and also to start consulting with staff about the benefits of vaccination. We're currently working with a number of employers to agree their Covid-19 vaccine policies.

Emma Burrows

Partner, Head of Employment and Pensions


Emma Burrows

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