Employers should tread carefully on requiring Covid-19 vaccinations

Latham Parry
February 4, 2021

Employers will need to tread carefully when it comes to Covid-19 vaccinations and whether or not employees should be required to have them, according to an employment solicitor at a leading Cheshire law firm.

A large London plumbing firm, Pimlico Plumbers, recently announced its intention to introduce no jab, no job contracts. However, this type of policy carries risk for the business.

Latham Parry, a partner at Watsons Solicitors, said: “The starting point is that the Government has made it clear that it cannot force people to have a vaccine, and it follows that employers cannot require employees to have one.

“So, employers can't force their employees to have an injection, but the next question is can they refuse to take someone on or dismiss someone for refusing to be vaccinated?

“Employers have a duty under the Health and Safety at Work Act 1974 to ensure, so far as is reasonably practicable, the health, safety and welfare at work of its employees. That is likely to extend to encouraging staff to be vaccinated.

“In addition, employees have a duty to co-operate and take reasonable care for the health and safety of themselves and others.”

Employees with at least two years’ continuous service have the right to not be unfairly dismissed, so employers will need to establish that a refusal to be vaccinated falls within one of the potentially fair reasons, such as conduct or ‘some other substantial reason’ of a kind to justify dismissal.

Latham added: “Any decision to dismiss would also have to fall within the range of reasonable responses of a reasonable employer. Each case would need to be considered on its own facts and circumstances.

“For example, it could be considered reasonable, and therefore fair, to dismiss if the employee’s refusal poses a risk to colleagues, patients or individuals in their care.

“On the other hand, and using the example of a care home, if all residents have been vaccinated there is a question as to whether an employee does pose a risk to by not having the vaccination (although risks to other staff could still be considered).”

The reasons an individual has for choosing not to receive a vaccine must also be taken into consideration because some circumstances could potentially give rise to a discrimination claim.

Latham continued: “Pregnant women and those who may be pregnant or who may be planning pregnancy in the next three months are outside the recommendations set by the bodies which license vaccines for use as they are not part of testing.

“Public Health England advice states that such women should be advised to not attend for vaccination. In this instance, dismissal would open up an employer to a pregnancy discrimination claim.

“Similarly, there might be a disability discrimination claim, if an individual has been advised against receiving a vaccine because of a medical condition, or even if they have a phobia of needles, if that amounts to a disability.

“There is also talk and discussion on so-called anti-vaxxers. It is likely to be argued that this so-called movement amounts to a philosophical belief and is therefore protected under the provisions of the Equality Act 2010, although I think this argument is unlikely to succeed.

“In the context of Covid-19, there is a lot of untested ground so far as employment law is concerned. Only time will tell whether certain arguments succeed one way or the other.

“Clarity will hopefully be provided when cases reach the appeal courts but this will take time. In the meantime, employers would be wise to take a cautious approach and take legal advice to mitigate the risks.”

Watsons Solicitors, which has been established for more than 60 years, specialises in family law, employment law, wills and probate, personal injury and conveyancing.

The team of experienced solicitors each hold various accreditations and memberships of professional bodies relevant to their expertise, while the firm’s partners oversee all areas of work.

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