There is a great deal of noise and comment in the political and media arenas about whether or not individuals will be able to attend events, eat in restaurants or visit certain venues if they haven’t had the COVID-19 vaccine. This leads to the question - what about employees going into the workplace? Should employees be required to have the vaccine and can you insist that they do, if they work in particular sectors like events or care homes?
At the moment there is nothing specific in law that would enable an employer to insist on existing employees having a vaccine, but there may be a necessity to have a vaccine to meet insurance requirements. For example, where there is work to be done in a particular country, it may be necessary to have a vaccine otherwise the employee will not be covered for insurance purposes. Most employees who carry out those roles will voluntarily have vaccines as they will recognise it’s part of carrying out their role. However, the COVID-19 vaccine is not the same as it’s not necessarily required to carry out all jobs, such as a solicitor or a bricklayer. And some employees may not want to have a vaccine for personal reasons. In those scenarios it would be difficult to justify compelling an existing employee to have a vaccine and it’s likely to be a case of unfair dismissal if they are dismissed or they resign in response to being compelled to do so.
For new employees you could make it a condition of their contract that they have the vaccine, but could they argue it’s an invasion of their privacy under the Human Rights Act to insist on that? This Act is limited in who can enforce it directly, so there could be some difficulties for employees arguing this point.
What if having the vaccine is something that is critical to carrying out the role, such as working in a care home? Again, while you may face the same challenges with new and existing employees, it is more likely that with a well-handled negotiation and consultation process, you can successfully agree this with your employees. If they don’t agree then it may be necessary to terminate the contract with notice and offer a new employment contract with the vaccine being one of its requirements. In that scenario, if a very good case can be put forward that the vaccine is essential to carry out the role, then it is less likely an employee will succeed with an unfair dismissal claim. It leaves the choice of continued employment to some extent in the hands of the employee.
This does bring into play a whole range of emotions and views, as we have seen throughout the pandemic, and there are some tricky decisions to be made by employers and employees ahead. It could result in more flexible working requests being made to avoid the issue by employees requesting to work from home permanently.
Pam Loch is a Solicitor and Managing Director at Loch Employment Law Limited.