As the Covid-19 vaccine begins to be rolled out across the UK, employers across all sectors may be breathing a sigh of relief. After a disruptive year, a sense of normality appears to be just around the corner, but with mixed feelings around vaccination, collective buy-in may prove tricky. So is it possible to compel employees to have it?
The truth is, it’s very difficult to persuade employees to do anything that they do not want to do and the employers’ options in these cases are limited. Indeed, the only likely recourse for an employer in these circumstances would be to say that the requirement to have the vaccine is a reasonable management instruction and so a failure to comply with that instruction would result in disciplinary action. Each case will be different and turn on its own facts, but dismissal could be a potential outcome in this sort of situation.
However, disciplinary action here would be fraught with risk and there are several factors to be considered. Firstly, is the request a reasonable one in the first place? That will depend on the nature of the employer’s business and the employee’s role. For example, a healthcare professional or care worker will be at high risk of catching the disease and spreading it to vulnerable people in their care.
An instruction from their employer in these circumstances to take the vaccine is much more likely to be reasonable than an instruction to, say, an office worker who is unlikely to have the same risk profile.
Furthermore, the contents of the relevant risk assessment will be crucial. If that identifies a vaccine as necessary, it will be easier to argue that requiring an employee to have it is a reasonable management instruction.
It is also important to consider the employee’s reason for refusing to take the vaccine. If there are genuine concerns – and I don’t simply mean anti-vaxxer conspiracy theories – then they should be considered by the employer and set against their reason for insisting the vaccine needs to be taken.
In a disciplinary case it is always important to weigh the employee’s mitigating circumstances against the alleged offence before making a decision and these sorts of cases would be no different.
There may also be protected characteristics to be taken into account when considering the reasonableness of the employee’s refusal. Some employees may refuse on the grounds of religious or philosophical belief, perhaps because certain animal products may have been used in the production of the vaccine. There may also be legitimate health reasons, perhaps amounting to a disability, which mean the employee is unwilling to be vaccinated. If raised, these potential discriminatory issues need to be considered before action is taken.
Some employers may not want to dismiss an employee for refusing to have the vaccine but, at the same time, may not feel able to allow them on site. What then is the situation with pay? This depends on the reason why the employee is not being vaccinated.
If they have a legitimate health reason, they should be paid statutory sick pay (or contractual sick pay if applicable). If the employee is not being vaccinated because of legitimate religion/belief reasons, then it is arguable that not allowing them into work because of that would require the employer to pay full pay.
If, instead, the employee does not have a legitimate reason for not being vaccinated, it is arguable that they are not ready, willing and able to work since they will not be complying with your health and safety policies and, therefore, not entitled to be paid. Also consider whether employees who can’t come into the workplace can work from home as an alternative.
Vaccination might become a complex issue for some employers to navigate. If you’re in doubt about how to handle this, I recommend seeking professional advice as soon as possible.
By James Tamm, director of legal services at employment law and HR support firm Ellis Whittam