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Spring 2021 39 IS IT A LEGAL REQUIREMENT? The Government has made it clear that the vaccination will not be a legal requirement. Whilst the Public Health (Control of Disease) Act 1984 enables the Government to prevent and control infection, it specifically prevents a person from being required to undertake medical treatments, such as vaccinations. As it currently stands, it is the Government’s plan to ensure that everyone has access to enough information for them to make an informed decision before they give consent. CAN COMPANIES FORCE EMPLOYEES TO VACCINATE? In short, no. Whilst employers are likely to be in favour of their employees being vaccinated, there will be workers who are concerned about the vaccine and would prefer not to have it, for various reasons. As such employers must be aware that forcing employees to be vaccinated could lead to claims of beaching human rights as well as discrimination claims depending on each cases circumstance. All employees, regardless of length of service, are protected against discrimination related to a protected characteristic, including age, disability, pregnancy and religion or beliefs. CAN YOU DISCIPLINE AN EMPLOYEE WHO REFUSES TO HAVE THE VACCINATION? An employer may consider taking disciplinary action against an employee who refuses to take a vaccine, on the basis that it is a breach of an employer’s reasonable instruction. That said, the first question to ask is: “Is it a reasonable request to enforce an employee to be vaccinated?” An important consideration is that whilst the vaccine does reduce the risk of individuals experiencing severe symptoms of Covid-19, it does not prevent the spread of the virus. Those who have been vaccinated can still become infected and pass the virus on. As such, regardless of who has had the vaccine, employers should continue to ensure that other health and safety control measures are in place, with a view of reducing the risk of spread to staff. On this basis, choosing not to have the vaccine is ultimately the individual’s risk to bare. There are very limited circumstances where disciplinary action will be justified and therefore, employers do run the risk of potential unfair dismissal claims or constructive unfair dismissal, by dismissing or threatening employees because they refuse to take a vaccine. It is incumbent on the employer to ensure that it fully engages with the employee in order to have a thorough understanding as to why they are refusing, thereby minimising the risk of potential claims. CONCLUSION It’s hard to argue against vaccination as the most effective way to combat the COVID-19 pandemic and save lives. That said, it’s vital to get an individual’s genuine, voluntary, and informed consent, before they are vaccinated. Employers need to be aware that whilst the vaccine does reduce the risk of individuals experiencing severe symptoms, it does not mean that employees cannot pass on Covid-19. As such, all employees should continue to follow the government’s guidance on social distancing. Remember: ‘Hands, Face, Space’. Any company wishing to take disciplinary action against an employee for refusing to be vaccinated must be able to ensure that the have fully engaged with the employee as to their reason for refusal. Note that there are very limited circumstances where disciplinary action will be justified and so it is strongly advised that if you are considering such action, to consult your designated HR Advisor beforehand. <<