Businesses have been warned not to make vaccination a pre-requisite of returning to work. The advice comes as the country’s programme of vaccinating against COVID continues with solicitors warning employers they could face legal action if they try to force employees to get vaccinated.
Joanna Alexiou, Head of Employment Law at London and Birmingham-based law firm, Mackrell.Solicitors says the government has not legislated for the vaccine to be mandatory and under previous public health acts, neither does it have the power to force a person to undertake medical treatment. Existing health and safety laws, while requiring employers to take reasonable steps to reduce workplace risks, while also giving employees a duty to cooperate, does not provide businesses with the power to make vaccination compulsory.
“It would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people,” said Joanna. “Current guidance recommends that employers support their employees in getting the vaccine, but cannot force them to do so.”
Employers looking to reduce or prevent an unvaccinated person from working could also find themselves in hot water, according to Mackrell.Solicitors, as there are discrimination issues, as well as the human rights of individuals to consider.
“Forcing an employee to get a vaccine takes away their personal autonomy to make decisions regarding their health and welfare,” explained Joanna. “In some cases, people may not be able to have the vaccine due to pre-existing disabilities and health conditions and this could lead to arguments of disability discrimination or age discrimination, where it is not suitable or available for those of a certain age.”
There are also a growing number of people opposed to vaccination on various ethical grounds, which could potentially amount to a protected religious belief and, therefore, be protected under the Equality Act 2010, according to the firm.
Joanna added that breach of contract or unlawful deductions from wages claims may also arise if an unvaccinated employee’s pay is affected as they are not allowed to attend work.Those employers using a person’s refusal to be vaccinated as grounds for dismissal or redundancy could also face legal action.
Looking ahead, the team at Mackrell.Solicitors said that employers may wish to review or create a policy on COVID-19 vaccinations that would require all employees who can and want to be vaccinated, to be treated at the earliest opportunity. This could be particularly important in workplaces where clinically vulnerable people are at risk, such as hospitals and care homes.
Joanna concluded: “Employers have had to navigate a lot of difficult issues in the last year and their approach to vaccinations and their employees return to work is likely to create circumstances that could lead to disputes and put some employers at risk of legal action if care is not taken.
“Employers who are unsure whether the actions they are taking could lead to discriminatory or unfair behaviour should seek legal advice.”