The UK Government has said that they will not make vaccination against COVID-19 mandatory. However, the question still remains as to whether employers will be able to make vaccination a condition of staff working or in the case of workforces that have been working from home, returning to the office.
This blog will outline what employers should consider when approaching the matter and the reasonable steps they could potentially take to protect staff.
Is making vaccination mandatory a reasonable measure to ensure a safe working environment?
There is the possibility that instructing employees to be vaccinated could be considered a reasonable requirement on the part of the employer. However, specific circumstances should be taken into account when deciding whether this is a reasonable step or not. For example, it could be considered reasonable if staff are working with vulnerable and high risk groups, such as those in the social care sector. This is different to the circumstances of those working in professional services or in an office environment.
If employers can show that vaccination is the most reasonably practicable way of mitigating the risk of COVID-19 after they have carried out a risk assessment, they could in theory mandate vaccination as a health and safety requirement.
What does the Health and Safety at Work Act 1974 suggest?
The Health and Safety at Work Act says that employers have an obligation to protect the health, safety and welfare of all their employees. Taking these duties into consideration, it could be seen as reasonable for employers to require employees to be vaccinated. Under the Act, employees also have a duty to cooperate with employers to ensure employers are able to implement the required health and safety measures.
However, it is still too difficult to say whether an employee refusing a vaccine could amount to a health and safety breach or whether an employer not making it a mandatory condition of working would also constitute a breach, given that the government itself is not making vaccination mandatory.
For more information on health and safety in the workplace see Rocket Lawyer’s relevant guides:
- Health and safety
- Employer health and safety responsibilities for staff working at home
- Health and safety for employees working from home during the coronavirus crisis
- Risk assessments at work
What other factors should employers consider?
Employers should consider other factors such as:
- how they can best encourage voluntary vaccination e.g. educating staff on the benefits of vaccination
- creating a workforce where some employees go in and some can work from home
- whether or not employees can or should have to provide proof of vaccination (this could give rise to data protection issues)
- ensuring that vaccination is not viewed as the only method for preventing risk, especially when mass vaccination is in its very early stages. All other safe working practices need to be taken into consideration and implemented
Are there discrimination risks employers should be aware of?
Any difference in treatment between those that have been vaccinated and those that haven’t could amount to discrimination. Employers must be aware of protected characteristics and bear in mind the different reasons individuals may not want the vaccine or may not be able to get the vaccine.
Some of the protected characteristics employers should consider include:
- Religion or belief – under the Equality Act 2010 a belief is a “philosophical belief that is genuinely held, that is cogent, serious and applies to an important aspect of human life or behaviour”. Ethical veganism is one example of a belief that has been upheld to be a belief for the purposes of the Equality Act and therefore a protected characteristic. Therefore, ethical vegans could potentially refuse vaccination on the grounds of their personal belief, especially if the vaccine has been tested on animals or uses animal by-products and proteins.
- Disability – there may be individuals that are unable to take the vaccine due to certain medical conditions.
- Age – as the vaccine is still in its early stages and the government has said that it will be rolled out to older individuals first and not be commercially available, it could be a very long time until the younger population are able to be vaccinated.
For more information on equality in the workplace read Rocket Lawyer’s guide on equal opportunities and discrimination.
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