On Tuesday, 90-year-old Margaret Keenan became the first person in the UK to receive a COVID-19 vaccination outside of a clinical trial, with thousands more following later in the day. Up to 4 million UK citizens are expected to be vaccinated by the end of December from hubs around the country.
While the initial rollout is aimed at over-80s and frontline healthcare workers, we are likely to see the eligibility criteria broaden over the coming months as the vaccination programme ramps up. It is also likely that, in the hope of returning to a semblance of “normalcy” in a safe office environment, firms will be anxious for all of their employees to become vaccinated at the earliest opportunity.
Lawyer Monthly received insight from several lawyers and employment specialists regarding the feasibility of employers dismissing or pursuing disciplinary action against employees who refuse be vaccinated. For people currently employed in the UK, are there any legal grounds on which their employer might force them to receive a vaccination to continue working?
Fundamental rights
The short answer, by most accounts, is no. The Public Health (Control of Disease) Act 1984, which gives the government the legal power to prevent and mitigate the spread of a contagion, specifically states that members of the public should not be compelled to undergo any mandatory medical treatment – including vaccinations. Even if the government should attempt to change this through new legislation, it would likely run up against Article 8 of the European Convention of Human Rights, which protects an individual’s right to a private life and to physical and psychological integrity. In this case, individuals would have legal recourse against public health authorities delivering any compulsory vaccination under the Human Rights Act 1998.
“As UK legislation currently stands,” Capital Law’s David Sheppard and Garyn Young pointed out, “employers would be in a similar position to the UK Government,” with no statutory right allowing them to directly compel their employees to be vaccinated.
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Potential exceptions
However, the situation is not quite cut and dry. Sheppard and Young suggested that an employment contract with a widely drafted medical examinations clause could change the situation, though these are obviously not common to most roles and explicit consent would still be required for any medical intervention. Workplace-specific factors would also need to be taken into account. Under the Health and Safety at Work Act 1974, an employer could have a duty of care to ensure that employees who work with vulnerable colleagues or members of the public are vaccinated in order to ensure a safe working environment. Employers in these circumstances may have grounds to discipline an employee who endangers others in their high-risk environment by, for example, refusing to take a vaccination before entering the care home where they work.
But even cases like these would be subject to intense scrutiny, and could be further complicated by potential religious or ethical justifications an employee may have for choosing not to become vaccinated. These are liable to be protected by precedent, Howarths employment law solicitor Anna Schiavetta noted.
“Any disciplinary actions borne out of an individual’s refusal to be vaccinated would be dependent on the reasonableness of the requirement to be vaccinated,” she said. “To demonstrate this, an employer will need to establish why it is necessary and explore whether there are other means of implementing a safe system of work. It will then be necessary to ensure that the refusal is not rooted in one of the protected characteristics of the Equality Act 2010. To lawfully impose any disciplinary sanction, the employer will need to ensure that it is fair and reasonable in all the circumstances.”
Employees who feel that they have been unfairly dismissed or disciplined due to their protected beliefs may be able to issue a direct or indirect discrimination claim against their employer.
Religious or ethical motivations for an employee to refuse a vaccine may be related to the ingredients it uses, such as animal-derived products like gelatine that are common to traditional vaccines. Problematic ingredients will become increasingly relevant as alternatives to the Pfizer vaccine become available.
“Any disciplinary actions borne out of an individual’s refusal to be vaccinated would be dependent on the reasonableness of the requirement to be vaccinated.”
Advice for employers and what may come next
As the modern UK has never seen a public health crisis on a scale that could be compared to the COVID-19 pandemic, nor such an urgent demand for widespread vaccination, it is difficult to draw sweeping conclusions about the legality of employers attempting to force employees to become immunised. Having said this, the legal precedent is heavily in favour of the employees, and firms are likely to find themselves beset with legal complications if they attempt to compel their staff to receive vaccinations.
But there is plenty of scope for less direct solutions, such as altering the duties of employees where their vaccination status may become relevant, or simply supplying them with whatever information or advice they need to make an informed decision. As there is still a relatively high risk of COVID-19 transmission in society as a whole, Sheppard and Young advise that employers do not treat a vaccination policy as a cost-saving substitute and instead continue to implement proper hygiene and social distancing measures wherever possible.
As the global health crisis develops, we will likely see organisations adopt a policy of mandatory vaccination among customers, particularly in international travel; airlines are already suggesting that vaccination certificates be required to fly. Graham Coffey & Co. Solicitors’ Managing Partner, Stuart Snape, noted that this practice could become relevant to firms’ internal practices as well.
“We have already seen suggestions that vaccination certificates may become necessary to gain entry to events or private establishments and it remains to be seen to what extent such measures would be either tolerated or accepted by the general public,” he said. “I suspect it would not be a huge step to extend such considerations to places of employment where for example an employer may require a vaccination from any employee wishing to attend a work social event – justified on the grounds of protecting the wider health of the workforce."
