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Mandatory Covid vaccines for employees – what if they say “no”?

Every year NHS organisations encourage their staff to take the flu vaccine, and with the unprecedented situation of the Covid pandemic many organisations in health and social care will be considering what steps they can take to ensure that their staff and patients are protected.

To start with, every organisation is entitled to take steps to protect the health and safety of its employees, those they care for, and the wider public.  Most will already have in place a policy on infection control which will restrict how and when an employee can return to work after sickness absence for an infectious condition.  In addition to these policies, clinical staff will owe duties to their patients under their regulatory codes of conduct.

However, if an employer wants to go one step further and make the flu or Covid vaccine mandatory, what difficulties will they face?  As a form of medical treatment, the individual must give their informed consent.  If they refuse to take the vaccine, and their employer still requires it there are a number of employment claims that the employee might bring:

An employee could resign and claim constructive dismissal on the basis that their employer has breached the implied duty of trust and confidence.  As this is an unfair dismissal claim, they would need to have at least two years’ continuous service.  It may be difficult for an employee to persuade a tribunal that the pressure on them was sufficient to justify their resignation.

Alternatively, if the employer dismisses those who refuse the vaccine, the employees could bring unfair dismissal claims (again, if they have two years’ service).  If they were dismissed purely and simply for refusing they may have strong claims.  An employer may be expected to seek to redeploy their staff to other areas where there is a lower risk of contact or infection, and it may be fair to dismiss an employee who refuses to take up alternative duties in the interim.

If an employee has a health condition and they have good reason not to take the vaccine as a consequence, they may have potential claim of disability discrimination.  This would depend on their condition – an allergy to vaccines is unlikely in itself to be a disability.

Some employees may object on the grounds of religious belief if the vaccine has been developed with products derived from pork, for example.  It may be possible to clarify this with the manufacturer.

It is unlikely that ‘anti-vax’ beliefs will be granted protection as a philosophical belief.  Hopefully, healthcare workers are less likely to fall for the more esoteric conspiracy theories (‘we’re all being microchipped!’), and an employee who actively espouses those views may well be behaving in a way that is incompatible with their employer’s values and interests.

In many cases, the answer will be encourage staff to take up the opportunity of vaccination voluntarily but if they refuse and if they are likely to come into contact with the public aim to find them alternative duties.  If there is no prospect of redeploying them, an employer may need to suspend staff on medical grounds.  It should be hoped that those who are given the chance to be vaccinated will be more than happy to take it but serious objections – on the grounds of health or religious belief – have to be respected.

The Healthcare Employment team at Ward Hadaway, led by Stuart Craig, can advise on health and safety policies and procedures, and issues relating to the Covid pandemic for organisations within the public sector, particularly the NHS, and have experience in dealing with issues of discrimination and dismissal. For further information, please get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.

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Stuart Craig

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+44 (0)785 092 8013

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James English

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