While around nine out of ten adults in the UK have taken up the offer of the coronavirus vaccine, some people have decided against it. This can mean a dilemma for employers, who will have to balance this against employees who are wholly in favour of vaccination and who may be reluctant to work alongside unvaccinated colleagues.
Dealing with two opposing beliefs will never be easy for an employer. Sensitivity is vital, as well as confidentiality. As an employer, it is important to let your employees know that you are listening to their concerns, whether this is over the vaccine itself or regarding working with someone who has not been vaccinated.
Ideally, the issues should be dealt with informally. It may be possible for unvaccinated employees to work at home or to take regular lateral flow tests. However, if you wish all employees to have the vaccination, you will need to exercise caution.
There is currently little or no relevant case law dealing with whether an employer can insist that an employee be vaccinated. An employer would need to show that compulsory vaccine was reasonable, for example, if it is required for travel or for an employee working in healthcare. It might also be the case that support for the government’s vaccine policy and protection of the public could be used as a valid reason, but it remains to be seen whether a court or tribunal would support this idea.
Compulsory vaccination as a condition of employment would generally need a change to be made to the employee’s contract, which could not be enforced without the employee’s agreement.
How to address the refusal of the vaccine
Where employees do not want to be vaccinated, you should try wherever possible to deal with the issue without confrontation. You may be able to move the employee to a different role where they do not encounter other employees or you could ask them to work at home. Another alternative is to require them to take regular lateral flow tests.
Not permitting unvaccinated employees to come to work could be problematic if there is also any element of sanction in place, as this could be construed as pressuring the employee.
If you have decided to require employees to have the vaccine as a condition of their employment and they refuse, then they may try to bring a claim for unfair dismissal if you dismiss them and they have been working for you for two years or more.
You would need to show that the dismissal was reasonable. The employee may argue that evidence of natural immunity or negative test results are adequate alternatives to vaccination. They could also claim that your actions were a breach of trust and confidence.
If an employee has not had the vaccine because of a protected characteristic, such as disability or religious belief, then it is likely to be classed as discrimination to dismiss them and you should exempt them from any requirement to have the vaccine.
It is recommended at this stage that dismissal be avoided, at least until case law establishes how tribunals will treat the situation.
For information regarding resolving disputes without resorting to litigation, see our dispute resolution guide.
Differences of opinion between employees
The issue of vaccination has proved to be fairly polarising, with strong opinions common. Different views between employees may need to be carefully managed, particularly where protected characteristics are relevant.
A vaccine policy may help employees to understand what behaviour is acceptable, although it is advisable to take legal advice before putting this in place as it is important to avoid any suggestion of discrimination.
Contact us
The subject of vaccination is a difficult one and has the potential to cause difficulties for employers.
At Witan Solicitors, we can advise you on how to deal with the issues surrounding vaccination, to include a safe vaccination policy and guidance in the event of a dispute.
If you have questions concerning vaccination or your duty of care to your employees and you would like to speak to an expert employment solicitor, email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in Birmingham, Northampton and London.
