A year on from the first reports of the coronavirus, the UK has become the first country in the world to approve the Pfizer/BioNTech coronavirus vaccine. We spoke with Sarah Calderwood, Partner in our Employment Team, about whether getting the vaccine, or not, could affect employment rights.
Britain’s medicines regulator, the MHRA, says the jab, which offers up to 95% protection against Covid-19 illness, is safe to be rolled out. The Government have confirmed that they have ordered 40 million doses of the jab, enough to vaccinate 20 million people, and the first of 800,000 doses of the vaccine will be dispensed in the coming weeks. Elderly people in care homes and care home staff have been placed top of the priority list, followed by over-80s and health and care staff.
Pfizer confirmed that the first stocks of the vaccine will be for the NHS, which will give them out for free based on clinical need. Mass immunisation of everyone over 50, as well as younger people with pre-existing health conditions, can happen as more stocks become available in 2021.
Can employers require their employees to be vaccinated?
Despite all this positive news, there is still a lot of uncertainty surrounding employers and whether they can demand employees to take the vaccine before they return to their office or even continue to work.
The general consensus is that your employer cannot force you to take a vaccine or discipline you for refusing to do so. Also, under current legislation, the UK government cannot demand members of the public to be vaccinated therefore it will be optional.
Sarah Calderwood, Partner in our Employment Team, has stated “Under current Health and Safety Legislation, employers have a duty to protect the health of their employees and anyone else, for example the public who may be affected by the employer’s business or who may be on your premises at any time.
“Existing vaccination guidelines state that if a risk assessment finds a risk of exposure to biological agents and effective vaccines exist, employers should offer to provide immunisations to those who are not already immunised, however, employees are at liberty to refuse immunisation.”
Can being vaccinated be added as a clause in my contract?
Sarah answered: “If you plan to introduce a contractual requirement for employees to get Covid vaccinations, then this will amount to a change in terms and conditions and you would need agreement from the staff to this change. If you impose this change without the employee’s express or implied agreement, you will be in breach of contract entitling an employee to resign and claim constructive unfair dismissal.
“I think employers would struggle to show that this change in terms and conditions is reasonable and I also think employers would struggle to introduce this type of contractual requirement after employment has already commenced. For new starters, a specific contractual clause requiring Covid vaccination would be easier to enforce, provided the vaccination is given around the same time as the employment contract is signed.
“Even if you had the contractual right to require a Covid vaccine, you would need to apply any such contractual requirement to have a vaccine in a reasonable manner which would include consultation with an employee worried about having the vaccine or refusing for other reasons. Disciplinary action would be difficult to take and I would not recommend this course of action.”
There could even be claims under the Equality Act if the employee has a valid reason for choosing to not have the vaccine that relates to a protected characteristic.
In conclusion, despite all the uncertainty, it will be unlikely that government will make it mandatory to take the vaccine. This would also mean that it is unlikely that employers will have the rights to demand employees to take the vaccine. However, the government and employers will likely urge people to take the vaccine for the safety of themselves as well as those around them.
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