Can we dismiss an employee who refuses the COVID vaccine?

The total number of people in the UK who have received the first dose of the COVID-19 vaccine, reported to 10 March 2021, is over 22.8 million. While the vaccine roll-out will come as a relief to many, employers may be considering the impact of the vaccination programme on the working relationship. Specifically, can an employer require an employee to be vaccinated or face disciplinary action?

It is worth remembering that the Government has not made the vaccine mandatory, and employers cannot force employees to be vaccinated. However, employers may be concerned about their duty to take reasonable care of the health and safety of their employees and provide a safe workplace. Employers may feel that vaccination of employees is an important part of complying with that duty. This could lead them to consider dismissing those employees who refuse the vaccine.

However, there are a number of risks involved in dismissing an employee who refuses the vaccine, which should be considered carefully before decisions are made.

Communication will be key. Employers should support staff and can encourage them to get the vaccine. Working with employee or trade union representatives may contribute towards voluntary take-up of the vaccine. However, some employees may be hesitant. It will be important to listen to employee concerns carefully before taking action.

Risk of Unfair dismissal allegations

Employers must consider carefully whether vaccination is necessary for someone to do their job. If it is, and depending on the circumstances, the employer may consider that a requirement to be vaccinated is a reasonable management instruction. Refusal may then result in dismissal, which would most likely be for Some Other Substantial Reason. Even if this is a potentially fair reason for dismissal, however, no decision to dismiss should be taken without following a fair and reasonable procedure.

This is not without risk for the employer. A decision to dismiss could lead to claims of unfair dismissal from employees with more than 2 years’ service. Employees may argue that it is not reasonable to impose a requirement on them to receive medical treatment that is not mandated by the Government; and that the risk to health can be minimised in other less intrusive ways, such as adhering to COVID secure guidelines in the workplace or allowing them to work from home.

Employers should also be aware that some employees may have been advised that it is not suitable for them to take the vaccine, for example, due to certain health conditions. Employers would need to consider whether exceptions should be made in certain circumstances, and whether alternatives such as redeployment to other areas of the business may be possible or appropriate.

One important factor will be whether the vaccine reduces the risk of transmission of the virus. Public Health England has confirmed that “early indications suggest that the vaccines are very effective at preventing transmission”. If the evidence shows that a vaccine does reduce transmission, that may strengthen an employer’s position that a requirement to be vaccinated is an important way to protect the health and safety of the entire workforce.

These arguments will all depend on the particular facts and circumstances. For example, an employer working in the care sector may be in a stronger position to defend their requirement than employers in other sectors, for example where their employees can work from home.

Risk of discrimination allegations

Any available vaccine may not be suitable for all. For example, some vaccines may not be suitable for employees with certain medical conditions, or for employees over a certain age, or pregnant women; and there may also be objections to the vaccine on religious grounds. A requirement for employees to be vaccinated could give rise to allegations of indirect discrimination.

It may be possible for an employer to defend a claim of discrimination, on the grounds that a vaccination requirement is justified. However, this will need to be carefully considered before any policy is introduced.

Other issues to consider

Employees may argue that a vaccination requirement is an unnecessary invasion of their privacy under the Human Rights Act, particularly if there are other, less invasive, ways to minimise the risk of transmission in the workplace.

There are also potential risks involved for the employer if a reluctant employee feels compelled to have the vaccine, and then suffers an adverse reaction to it.

If employers are considering keeping a record of employees who have received the vaccine, they will need to take into account their data protection obligations and put in place policies and procedures to comply with those obligations.

Even if all or a large proportion of employees are vaccinated, employers should not assume that they no longer have to comply with COVID secure guidelines issued by the Government. Employers should continue to work closely with their Health and Safety teams or advisers on this point.

Comment

Further guidance from the Government on these issues would be welcomed. However, it will be some time before any of these issues fall to be determined by Employment Tribunals and we have no indication of how a dismissal for a refusal to be vaccinated will be viewed.

In the meantime, employers should bear in mind that this is a sensitive issue and should tread cautiously. Any decisions should be carefully thought through and employers should seek legal advice on the risks involved in their particular circumstances before taking action.

Originally posted 11 February 2021. Updated 11 March 2021.

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