A vaxxing question – Can your employer force you to have a vaccination?

David Sheppard, an employment lawyer from Capital Law

David Sheppard, an employment lawyer from Capital Law

David Sheppard, an employment lawyer from Capital Law outlines the legal perspective on employer mandated vaccinations.

Currently there are no statutory provisions which could force individuals to become vaccinated.

The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.

If any UK government were to legislate for compulsory vaccinations, it could give rise to numerous objections on the grounds of individual liberty and human rights. This is owing to Article 8 of the European Convention on Human Rights, which protects people from being interfered with physically or psychologically and is inclusive of mandatory vaccinations.

Can employers force you to vaccinate?

In short, no.

In theory, if there is a thorough medical examinations clause in a contract of employment, it could be relied upon. However, this would still be problematic and consent would still be required.

If employers were to try to force their employees to be vaccinated, not only could it give rise to the human rights concerns, but there could also be criminal implications.

Forcing anybody to receive a vaccine injection under duress could constitute an unlawful injury.

Additionally, someone’s anti-vaccination position could amount to a protected philosophical belief under the Equality Act 2010. If an anti-vaxxer could establish that their belief was genuinely held, then they may find success at a tribunal

And there are anti-religious discrimination arguments too. There are several religious issues at stake when it comes to vaccinations, but the main one is the fact that many vaccines use pig gelatine, which could cause problems for some, and also vegans; all of whom are protected under the Equality Act.

Can employers indirectly compel employees to vaccinate?

Employers could take indirect measures to pressurise vaccination of their employees, such as refusing employees’ entry to certain parts of the workplace or roles, if they are not vaccinated.

Similarly, employers may issue disciplinary action if an employee refuses to be vaccinated. Any such measures should be considered very carefully before being implemented.

If an employee’s refusal to be vaccinated due to a disability/protected religious/philosophical belief results in disciplinary action they may be able to issue a direct or indirect discrimination claim, and claim constructive unfair dismissal if they resign.

A better course of action for employers would be to help inform employees about vaccination by sharing impartial, factual information.

What if you work with vulnerable persons?

Under the Health and Safety at Work Act 1974, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they will have close contact with the clinically vulnerable.

For example, it could be argued that requiring a care home employee to be vaccinated, and disciplining them if they refuse, is reasonable due to the high-risk nature of the work, ultimately justifying dismissal or other disciplinary action.

However, it’s not quite that simple, and any employer mandating a vaccine would need to balance the proportionality of the interference with an employee’s Article 8 rights against the amount the risk is reduced by vaccination. Essentially does the vaccine reduce transmission or does it simply suppress symptoms in a carrier? It is this information that would inform an employment tribunal as to the reasonableness and proportionality of mandated vaccines in a high-risk workplace.

However, if the effect of the vaccine is to also suppress transmission over and above social distancing measures, it could then be possible in theory to justify disciplining an employee where they refuse, or relocating them to other roles, if there were no other reasonable alternative action.