Employers must be wary of requiring employees to have a Coronavirus vaccine, says South Essex employment solicitor

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A South Essex-based employment solicitor has said that employers must be wary of forcing employees to have a Coronavirus vaccine.

Samantha Randall, an Associate Solicitor at Palmers Solicitors, which has offices in Basildon, Rayleigh, Thurrock and South Woodham Ferrers, made the comments as the UK begins its vaccination programme with the aim of inoculating millions in the coming months.

She said: “The Coronavirus vaccines are highly effective and the virus is having a significant impact on businesses in all sectors, even without taking restrictions into account, as a result of self-isolation, sick leave and the risk of harm to colleagues and clients.

“This means employers could be tempted to require employees to be vaccinated.”

However, she added that do so would come with risks and that employers would be better persuading their employees of the benefit of the vaccine.

“Even in sectors like health and social care where vaccines could be considered safety-critical, it would be difficult for an employer to justify a blanket requirement for employees to be vaccinated.

“There are several factors that would make doing so complicated such as the fact that vaccines are not suitable for everyone, such as people who are allergic to certain ingredients or pregnant or breastfeeding women.

“Crucially, pregnancy and sex are protected characteristics in employment law, as is disability, which could encompass some of the reasons a person either cannot have or might not want a vaccine,” added Samantha.

In addition to these characteristics, religion or belief is also protected in employment law and could have a bearing on an employer’s ability to compel employers to have the vaccine, according to Samantha.

She said: “It is possible that certain religious or moral philosophical objections to the vaccine could be protected from discrimination under section 10 of the Equalities Act 2010.

“It may also be that someone’s anti-vaccination position could amount to a protected philosophical belief.

“There is certainly scope for a wide range of views on vaccination to fall within this protection, but, equally, not all views will qualify and a complex analysis is therefore required into the individual’s particular belief and the basis for it, rather than a sweeping label of ‘anti-vaxxers’.”

Samantha said that these obstacles mean that an employer looking to require that employees are vaccinated would at a minimum need to allow for various exemptions to such a request.

However, she noted that the failure to follow a reasonable instruction can lead to a fair dismissal.

“Whilst there is yet to be any case law authority on this point, a tribunal is likely to have sympathy with an employee who did not want to get the vaccine and was dismissed or disciplined as a result.

“A tribunal would be reluctant to find it fair to impose what is effectively a medical procedure on employees, notwithstanding basic human right. However, the nature of the workplace could be a relevant factor.”

She added: “In view of the risks of a mandatory vaccination programme, it is advisable for employers to consider how best to achieve voluntary vaccination.

“An employer has an implied duty to take reasonable care of the health and safety of its employees and to take reasonable steps to provide a safe workplace and a safe system of work.

“This could well extend to an obligation to inform staff about the advantages and disadvantages of vaccinations.”