In essence, an employer cannot ‘compel’ an employee, legally, physically or otherwise, to get a vaccine.
We could anticipate that there are certain circumstances where it may be fair and justified for an employer to legitimately request an employee be vaccinated and to take action for refusal including disciplinary action and/or dismissal.
It is believed that the circumstances that may be able to be justified as a fair dismissal are:
- If employers such as NHS and care homes need to require their staff due to risk of spread of the virus. But an employer in this instance would need to show an attempt to redeploy the employee to an area where the employee wouldn’t need a vaccine if possible; and
- If an employee is an active anti-vaxxer sharing negative information on the vaccine, it may be possible for an employee to justify a dismissal as fair if it is against the company’s (e.g. health companies) message/brand.
There are circumstances where legal remedy may be available to employees who make a claim to the Employment Tribunal should an employer take disciplinary action on an employee who refuses to take the vaccine.
We consider the possibilities below:
- Unfair Dismissal
Whilst there isn’t any case law yet it is thought that in most circumstances a dismissal on the basis of refusing to take a Covid-19 vaccine would be unfair for the following reasons:
- An employer can’t legally compel someone to get the vaccine;
- It interferes with someone’s human right to a private life;
- Some people reasonably believe that the vaccine might be dangerous for them due to concerns on the potential side effects and testing; and
- It is reasonable to be hesitant re chance of getting an adverse reaction.
There are limited fact specific circumstances where a discrimination claim may arise:
- Disability: For a person satisfying the definition of a disabled person within the Equality Act 2010, it may be possible to argue that the vaccine is dangerous for them and to be treated less favourably for refusing might be discriminatory; and
- Religious Belief: The full ingredient list of the available vaccines is currently unknown, however, if an ingredient such as pork gelatine is included then someone who is of Muslim faith could argue it is discriminatory on the grounds of religious belief to treat them less favourably for refusing to take the vaccine.