15 January 2021 #Employment
The UK government is relying on the national vaccination programme against COVID-19 as a route out of this crisis. The programme is voluntary and the government is clear that it will remain this way, both for civil liberties and public health reasons: the government believes that more people will take the vaccine when offered if it is a matter of individual choice.
However, this week Pimlico Plumbers has stated that they will make it compulsory for its workforce. Leaving aside the fact that the vaccine is only being offered through the national programme in priority order, is it advisable for an employer to insist on its employees being vaccinated (when offered )as a condition of employment?
The short answer is probably no, with the possible exception of sectors such as primary health and social care where regulations or insurance requirements could make vaccinations effectively mandatory. There are discrimination and contractual considerations but we will focus on human rights issues and employer’s obligations.
A requirement to take a vaccine is likely to be an interference with the Article 8 European Convention on Human Rights, the right to respect for private and family life. If an employee who was dismissed for refusing to be vaccinated brought a claim for unfair dismissal, the employment tribunal would need to carefully consider whether that interference with Article 8 could be justified.
It is relevant that the vaccines approved so far have been shown to prevent the development of serious illness, rather than transmission of infection. Of course, the expectation is that they will reduce transmission but there are other less invasive ways to minimise the risk of transmission in the workplace which do not amount to a minor medical procedure, such as mask wearing, physical distancing and improved hygiene
Nonetheless, employer’s duties regarding the health and safety of its employees could well extend to an obligation to inform staff about the advantages and disadvantages of vaccinations - particularly since evidence suggests that the success of vaccination in eradicating the spread of the virus will depend on the extent of the take-up. This is likely to become relevant to employers in the UK when the offer of vaccination is further rolled out.