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Posted 24 February 2021 in News

Can Employers Lawfully Dismiss Employees Who Refuse the COVID Vaccine?

After almost a year of disruptions and lockdowns, there’s finally light at the end of the tunnel in the shape of the coronavirus vaccine. This could help us protect our most vulnerable and return to some form of normality.

However, not everyone will want to be vaccinated. As an employer, what should you do? Can you lawfully dismiss an employee who refuses the COVID vaccine or would you face legal problems? In this blog Acorn Support take a closer look at the implications.

What does the law say about vaccinations?

According to The Public Health (Control of Disease) Act 1984, individuals cannot be forced to be vaccinated against their will under any circumstances. This means that neither the government nor an employer can insist upon vaccination.

If they attempted to do so, they would be contravening both the Human Rights Act of 1998 and Article 8 in the European Convention on Human Rights which protect your right to a private life. Both could attempt to insist, but an employment tribunal is unlikely to look kindly on the act.

Additionally, if you threatened your employees with dismissal if they refused the COVID vaccine, you may risk a discrimination claim on the grounds of disability, age, religion, or belief.

An employer who requires employees to receive a vaccination could potentially be open to the risk of a discrimination claim on the grounds of disability, age, religion, or philosophical belief.

Why might your employee refuse a vaccine?

Employers should recognise that there are several reasons why an employee might refuse the coronavirus vaccine. These include:

  • Religion: Pork gelatine is used in some vaccines (but not the vaccines made by Pfizer/BioNTech, Oxford/AstraZeneca and Moderna). This could be problematic for Muslims, Jews, and Vegans. Like all vaccinations, the coronavirus vaccine was tested on animals which could also raise issues for some. These reasons for vaccine refusal are protected under the Equality Act 2010.
  •  Health or disability: Those living with disabilities or health problems could reasonably argue that vaccination could be dangerous to their health.
  • Concern about vaccine safety: Many individuals have concerns about the potential side effects of the COVID-19 vaccine, testing safety and so on. These are genuine and reasonable concerns which would stand up in an employment tribunal.
  • Philosophical beliefs: Even if the employee refuses vaccination because they believe that all vaccines are harmful (anti-vaxxer), their belief is worthy of respect and could also be supported at a tribunal.

Can you dismiss your employee if they refuse to be vaccinated?

Whilst UK health and safety regulations require you to offer vaccinations to your employees if they risk exposure to biological agents, your employees can refuse. This applies to any kind of vaccine required in the workplace.

If you dismiss an employee because of their refusal and they have completed more than two years of service, they could claim for unfair dismissal. They could also seek a discrimination claim if their refusal was based on health, religious, philosophical, or other grounds mentioned above.

However, it becomes more complex if vaccination is ‘mission-critical’. Those working in care homes, in the NHS or in other similar environments have a duty to be immunised and avoid passing the infection on to these vulnerable groups.

What should be considered when making vaccinations mandatory for employees?

Employers could potentially make a requirement for COVID-19 vaccination a part of the employment contract. This must be agreed on by current members of staff or else could be deemed a change of terms of the contract. Future members of staff should be made aware of this requirement before they sign.

They should also consider any data protection implications that may arise as a result of making vaccinations mandatory. This type of data is likely to be considered sensitive and will therefore need to be processed and documented in a specific way, with an impact assessment also carried out.

Summary

As the vaccine continues to roll out, we will undoubtedly be faced with these types of dilemmas. Although you can encourage employees to have a COVID vaccine, you cannot require them to do so. If you do, this could be considered an unlawful dismissal and the case may be taken to an employment tribunal.

For more advice about this contentious subject area, please speak to the expert team at Acorn Support today.

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