Can an employer insist on an employee being vaccinated?

Seamus Rotherick
By Seamus Rotherick October 16, 2021 10:03

There is no law that says people must have the vaccine, even if an employer would prefer their staff to have it. This is believed to be the approach that an employment tribunal would expect a reasonable employer to take in the vast majority of cases.

As Covid restrictions have eased, workplaces have opened up and more people have returned to working on-site. In the golf industry, the most recent change in terms of staffing has been that catering and bar operations have been returning to something close to ‘normal’. It seems an opportune moment to examine whether an employer can insist on employees having a Covid vaccination as the vaccine is offered to the younger sections of the population.

The first thing to note is that neither the Westminster government nor the devolved governments have made vaccination mandatory for the people; they cannot make it so under the existing legislation.

It follows, therefore, that an employer cannot compel an employee to be vaccinated. Any physical attempt to do so is likely to constitute a civil wrong (the tort of trespass to the person), and also the criminal offence of battery or assault.

The ACAS guidance on getting the coronavirus vaccine for work (as updated March 16, 2021) states that employers should support staff in getting the vaccine once it is offered to them. There is no law that says people must have the vaccine, even if an employer would prefer their staff to have it. This is believed to be the approach that an employment tribunal would expect a reasonable employer to take in the vast majority of cases.

If an employer introduced a ‘no jab, no job’ policy and it could not show that it is necessary, it is likely to be at risk of claims from staff, for example:

  1. For indirect discrimination:
  • from younger employees who have not been able to be fully vaccinated because they do not fall within a priority group for vaccination
  • from those who refuse the vaccine because of a religious or philosophical belief
  • from those who cannot have the vaccine because of a disability.
  1. For constructive unfair dismissal, on the basis that the requirement breaches the implied term of trust and confidence.

Consideration should also be given to the employee’s right to respect for private and family life under article 8 of the European Convention on Human Rights (given effect in the UK by the Human Rights Act 1998).

It is unlikely that a golf club employer will be able to demonstrate in law that vaccination is necessary for its staff. In order to highlight the high bar required, care homes have had special legislation enacted such that people working in care homes will need to be fully vaccinated against coronavirus (Covid-19) in order to provide better protection for care home residents.

Even once the younger generation get to have both doses of the vaccine, we are now hearing reports of the vaccine reducing in its efficacy with time, such that the older generation and clinically extremely vulnerable (the first batch of vaccinated people) are less protected now and that they might be in need of a booster jab. There are also those people who have a natural immunity for a time if they have recently had the coronavirus. Query how an employer goes about justifying a need for a vaccine when there will be different sections of the workforce with varying levels of potentially uncertain protection and immunity. Also, consider whether a justification of the jab being necessary would be successful if the club continues with many of the risk assessed safety measures from the pandemic.

Golf clubs and their members may still draw comfort from the fact that there has been no change in the law on health and safety and the important obligations which continue to apply to all employers. Employers remain under the same legal duty to do what is reasonably necessary to ensure that their employees are provided with a safe workplace and safe system of work. The risk assessments which golf clubs have carried out as a result of the Covid pandemic will certainly still be relevant and should continue to be applied when considering what measures are appropriate to ensure employees’ continued health and safety at work. For example, many prudent employers will continue to require staff to maintain social distancing to avoid crowding and continue to require employees to wear face masks in certain areas in order to minimise the risk of Covid infection in the workplace. Similar distancing measures may also be required of club members when indoors.

Employers may find it useful to talk with their staff about the vaccine and share information on the benefits of being vaccinated. The PHE vaccination guide for healthcare workers, for example, highlights:

  1. The degree of risk to which healthcare workers are exposed, and the consequences of catching coronavirus and transmitting it on to family, friends and patients
  2. That the vaccine will reduce an individual’s chance of suffering from the disease and that it has shown to be effective
  3. While the evidence on whether vaccination reduces the chance of passing on the virus is less clear, PHE expects that vaccinated health and care staff will be less likely to pass infection to their friends and family and to the vulnerable people that they care for
  4. The common side effects.

According to the ACAS guidance, if someone does not want to be vaccinated, the employer:

  1. Should listen to their concerns; some people may have health reasons for not wanting to be vaccinated, eg they could get an allergic reaction
  2. Should be sensitive towards individual situations
  3. Must keep any concerns confidential

4. Must be careful to avoid discrimination.

 

Seamus Rotherick
By Seamus Rotherick October 16, 2021 10:03
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