Can Covid-19 vaccinations be a condition of employment?

What is the legal position in this area? In short, compulsory vaccines are a legal minefield and employers will need to be very careful how they approach the matter.

The law

Under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974), an employer must take all reasonably practicable steps to reduce workplace risks to their lowest practicable level. Additionally, under section 7 of the HSWA 1974, an employee has a duty to co-operate as necessary with the employer to enable it to comply with any statutory requirements.

Moreover, employees will want to be reassured that they are working in a safe environment. However, this is unlikely to extend to employees being legally required to take the vaccine in all business sectors. We will have to wait for further guidance from the government on what measures an employer may be required to take.

The meaning of "reasonableness" is likely to depend on the business sector of the employer and the services it provides. For example, it may be important for those working in the hospitality sector to take the vaccine, as they are serving and interacting with customers in close proximity.

Therefore, dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fairly, either on conduct grounds or for some other substantial reason.

Expert advice

Despite this, an employer should proceed with caution before deciding to dismiss. Employers will need to consider other available alternatives, which may include moving the employee to another role involving less contact with clients.

On the face of it, an employer's requirement for an employee to have a Covid vaccine appears a "reasonable instruction" in order to keep other work colleagues safe in the work place. However, the position is far more complex and raises numerous legal issues that will need to take into account the requirements of the employer and the individual circumstances of the employee.

As the vaccine rolls out across the age groups, employers will need to keep abreast of the government's public health guidance in relation to the pandemic and start to develop their own Covid-19 pandemic policies to take into account the implications of the vaccine in the workplace.

To-do checklist

Before implementing any policies, there are certain considerations that businesses should make to avoid breaching any strict guidelines or rules:

• Religion and belief: It is unlikely that an ‘anti-vax' approach amounts to a philosophical belief for the purposes of the Equality Act 2010. However, not all vaccines in production have released their list of ingredients. It is possible that gelatine may have been used in some vaccines or in its production process and therefore, an employee with certain religious beliefs may have religious grounds for refusing.

• Disability discrimination: If an employee has been advised by their doctor not to take the vaccine on medical grounds, an employer's requirement to take the vaccine may amount to disability discrimination.

• Pregnancy and maternity discrimination: Public Health England advice states that "women should be advised not to attend for vaccination if they are, or may be, pregnant". Therefore, a requirement to take the vaccine as a condition of employment for a pregnant employee is likely to amount to sex discrimination.

An employer's requirement to take the vaccine may amount to disability discrimination

Beware!

In all sectors, the employer will need to consider the circumstances of the individual employee. The risks include discrimination on the grounds of religion and belief, disability and pregnancy, as well as unfair dismissal if the employee has unfair dismissal rights. This could lead to a lengthy and potentially costly legal dispute.

Alec Colson is partner and head of employment law at Taylor Walton

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