Business Leader recently spoke to Amanda Hamilton, CEO of the National Association of Licensed Paralegals, to discuss the legal ramifications surrounding the COVID-19 vaccine in the workplace.
It’s likely that many business leaders may feel that making sure employees are vaccinated before they return to work is the right thing to do. If you are one of those employers, can you force them to? Can you stop them working if they refuse?
The simple answer to those questions is no! There are various legal constraints that you, as an employer should be aware of:
- Mandatory vaccines cannot be imposed
Despite what the anti-vaxxers might say, there is no law in UK which requires mandatory vaccination. The Public Health (Control of Disease) Act 1984 devolves powers to Parliament to legislate in order to protect UK Citizens.
The law enables Parliament to intervene in an emergency situation, such as the pandemic, and impose lockdowns and restrictions to protect citizens, but it cannot impose mandatory vaccinations. In other words, there is no power to make vaccinations mandatory.
This raises a whole host of issues from human rights to equality, and balances them against the rights of others to be safe in their workplace. In addition, it raises issues around the possible criminal implications of forcing someone to be vaccinated against their will.
- Human Rights and Equality
Compulsory medical treatment or testing is contrary to Article 8 of the European Convention on Human Rights meaning that it is a human right to refuse medical treatment if you wish to do so. Refusing medical treatment could be because of deeply held religious or other beliefs, and this brings into play the Equality Act 2010. This statute states an individual is protected from discrimination from nine possible characteristics including: age, disability, gender re-assignment, pregnancy and maternity, race, religion or belief and sex.
So, an employer cannot force an employee to be vaccinated.
- Potential criminal repercussions
The Offences Against the Persons Act 1861 s20 states that an unlawful wounding would occur if a person were forced to have a vaccination against their will. A wound means ‘a break of the skin’. This statute still remains in force today.
- Dismissal and constructive dismissal
Can an employer dismiss an employee for refusing the vaccine?
The short answer, again, is, no. If they did, then it would amount to an unfair dismissal and the employee could justifiably take the employer to an employment tribunal for discrimination. The case would be brought under the Equality Act 2010 in that the claimant’s refusal to be vaccinated is founded on a fundamental belief or on religious grounds. It would of course, be for the claimant to prove that she/he has such beliefs.
The position would be the same if the claimant felt that they were being victimised, because of their belief, to such an extent that they felt that they could not continue being in the employ of the employer, and consequently, resigned. This would amount to constructive dismissal. The result being the same as if the employer had dismissed the employee – an employment tribunal case could ensue for unfair dismissal.
- Protecting all employees
But how can an employer begin to manage such a situation if there is a statutory duty to provide a safe environment for employees in the workplace?
The Health & Safety at Work Act 1974 places the responsibility on employers to protect the ‘health, safety and welfare’ at work of all employees and includes others on the premises such as temps, contractors and visitors.
This appears to be in contradiction to the premise that it is an individual’s right to refuse the vaccine. The only way to manage this is to impose certain guidelines on employees such as those we are all asked to follow during the current pandemic, e.g. social distancing, mask wearing and sanitising/hand washing etc.
Of course, all this does depend on job that an employee is employed to do. For example, working in an office environment, following government guidelines may work reasonably well. However, if the employee that is refusing to accept the vaccine is working in social care or in medical care with vulnerable patients, then the standards may change. Being on the front line in such a situation may well mean that refusal to be vaccinated may place those who have not yet been vaccinated (perhaps due to age, medical conditions, or access), as well as themselves, at risk.
- Possible solutions
In these circumstances, it may be prudent to find alternative work for the employee until it is safe for them to return. A reasonable solution such as this should be acceptable to an employee. If not, and the employee brings an unfair dismissal case against the employer for constructive dismissal on the basis of discrimination, then a Tribunal, hearing such a case would weigh up the rights of the claimant to refuse the vaccine, with the nature of the work they do, the alternatives offered to them, and how many others would be put at risk, if they were to continue in their role without vaccination. In other words, they would look at the situation and apply a test of reasonability.
- Personal health data
Finally, can an employer insist that their staff tell them whether or not they have been vaccinated?
If you can demonstrate that asking them to be vaccinated is a reasonable management instruction, then asking them for this information will also be reasonable. However, just as you can’t force them to be vaccinated, you also can’t force them to reveal their vaccination status.
Again, equality laws will come into play if there is a risk that revealing their vaccination status will result in discrimination within the workplace.
If they do agree to tell you then this will constitute sensitive personal health data and you’ll need to comply with GDPR. The same applies to information about who has not been vaccinated and why.
It’s a very difficult position and if you find yourself in this situation, I would say that the best policy is one of clear communication. Explain why you’d like staff to be vaccinated and why you’d like the information about their status. Give them an opportunity to discuss this privately with you or your HR department, and look at ways to mitigate the risks and offer alternative working options. This way you have done your best to provide the right working environment, have kept staff informed and engaged in the process and ultimately reduced the chances of a Tribunal claim.