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Vaccination issues for employers

Jan 27, 2021

Whilst the vaccine is currently only being rolled out to priority groups, its anticipated that it will be available to the wider population in the not too distant future.

Employers hoping for a return to the workplace will need to consider how to comply with their health and safety obligations and whether vaccinations could play a part in this.

Earlier this month, it was reported that Pimlico Plumbers would be introducing a “no jab, no job” policy, requiring all of their workers to be vaccinated against Covid-19. However, a blanket approach to employee vaccination like this could bring with it a number of legal issues. Employers will need to take care in addressing the topic of employee vaccinations to avoid any discrimination or other employment law issues.

Can employers require employees to be vaccinated?

Asking employees to receive the vaccine could be regarded as a ‘reasonable management instruction’. However, this will depend on the circumstances of each employee. Whilst a request to be vaccinated may be considered ‘reasonable’ for those working in the health and social care sector, such a request may not meet the legal threshold in other sectors, where the rationale for staff to be vaccinated may not be as strong.

Whether such a request would be a ‘reasonable instruction’ should be assessed on a case by case basis and we would recommend taking professional advice on such an issue. A failure to follow a reasonable instruction could justify disciplinary action being taken by an employee, however employers should be encouraged to tread very carefully if considering any form of disciplinary action or dismissal arising from a refusal to receive a vaccine.

Employers will need to ensure that any policy on vaccination does not adversely affect people from a protected group (i.e because of their race, age, sex, religion or disability). Any different treatment between those who have and haven’t been vaccinated could also amount to indirect discrimination. This could especially be the case during the current stages of the vaccination stages, where older and clinically vulnerable people are being prioritised for the vaccine.

A sensible approach to take would be to encourage employees to be vaccinated as and when they have the option and highlighting the benefits to them and their colleagues of doing so. Any health and safety precautions already being taken should not be scaled back following employee vaccinations and employers should continue to follow the government’s industry specific Covid-Secure workplace guidance.

This is a topic that is likely to develop substantially over the coming months and it is likely we will see further guidance and advice from the government and the Health and Safety Executive. At this stage, however, employers should be aware of the potential issues related to employee vaccinations and should consider communicating with employees to try and resolve any concerns as early as possible.

For further information, or to discuss the issues raised by this update, please contact our Employment Group on 0118 977 4045 or employment@herrington-carmichael.com.

This reflects the law at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought as appropriate in relation to a particular matter.

By Tom Hyatt

Trainee Solicitor, Employment Law

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