To the Point

Russell Dann, associate at Clarkslegal discusses the legal implications of a vaccine policy.

The UK government is clearly relying on the national vaccination programme as central to the route out of this crisis. The programme is voluntary and there is no reason to think it will change, both for civil liberties and public health reasons: the government believes that more people will take the vaccine when offered if it is a matter of individual choice.

However, there has been off the record briefing that ministers believe that existing health and safety law could permit employers to require their employees to have COVID-19 vaccinations. Employers have statutory and common law duties to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their workers. This includes provision and maintenance of a safe working environment and a safe system of working. That does not in itself lead to a conclusion that employers would be in breach of that duty if they permitted unvaccinated employees to attend the workplace.

Some context is important here. In England, it is not expected that there will be changes before April to the requirement to:

  • work from home where reasonably possible; or
  • for workplaces that are open to adhere to government COVID secure guidance.

At current rates, by mid-April the NHS is on target offer a first coronavirus vaccine to everyone over 50 and everyone with health conditions identified by the DHSC as making them clinically vulnerable to COVID-19.

The Astra Zeneca vaccine, which is being used most widely in the UK, has been shown to offer sustained protection of 76 per cent from developing symptomatic COVID-19 illness three weeks after the first jab and there are indications that it may reduce transmission of infection by 67 per cent.

Finally, average infection rates have fallen due to lockdown to levels not seen since October and the government has indicated that it will not release lockdown measures until infections have fallen further, with the exception of schools reopening to all students.

All of this would make it very challenging for most employers to insist that it is health and safety requirement for employees to be vaccinated. There would of course be different considerations depending on the nature of the workplace, particularly health and social care settings. Overall, the CBI has said there is no case for compulsion.

Nonetheless, if an employer did make vaccination a condition of employment, what challenges would it face?

A requirement by the employer to take a vaccine is likely to be an interference with Article 8 of the European Convention on Human Rights, the right to respect for private and family life. If a private sector employee was dismissed for refusing to be vaccinated and brought a claim for unfair dismissal, the employment tribunal would need to carefully consider whether that interference with Article 8 could be justified. In the public sector, it is unlawful for employers to act in a way which is incompatible with the Convention and their employees could bring claims under the Human Rights Act 1998 as well.

Although the vaccines are expected to reduce transmission of infection, there are other less invasive ways to minimise the risk which do not amount to a minor medical procedure, such as mask wearing, physical distancing and improved hygiene. This means that it may be legally permissible for an employer not to permit an employee to attend the workplace if they refuse to take a wear a mask and are not exempt on medical or relevant disability grounds even where it would not be permissible on human rights grounds to compel them to take a vaccine as a condition of employment.

An employer making vaccination compulsory would also have to deal with discrimination issues. For example, some of the vaccines are not suitable for certain individuals with suppressed immune systems or pregnant women. It is also possible that certain religious or moral objections to the vaccine could be protected by discrimination law.

If the employer pressed ahead for employees who can receive the vaccine, making it a contractual requirement would be a change in terms and conditions. This may require collective consultation and individual agreement. Many employees might object to the element of compulsion, for reasons including understandable hesitancy about the vaccine. Without agreement, imposing the change would be risky for the reasons I have outlined above.

Nonetheless, an employer’s duties regarding the health and safety of its employees could well extend to an obligation to inform staff about the advantages of vaccinations – particularly since evidence suggests that the success of vaccination in suppressing the virus will depend on the extent of the take-up. This is likely to become relevant to employers in the UK when the offer of vaccination is further rolled out.

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