Offices across the UK are starting to reopen, but can employers make it mandatory for employees to have the Covid vaccine? Here's the latest legal advice from Chris Brazier, employment partner, B P Collins.
Can employers force employees to be vaccinated for work?
An employee’s decision to receive the vaccine is, essentially, a personal one. However, there is a conflict between this right and an employer’s duty to take reasonable steps to provide a safe place of work.
From a legal perspective, the increasing evidence that shows that vaccination reduces both transmission of Covid and the symptoms of it, may not be sufficient on its own to justify imposing a mandatory vaccination requirement- with the vaccination not yet being considered a substitute for Covid secure measures in the workplace. Aside from care home workers who will shortly be subject to government legislation mandating vaccination, the remainder of the workforce are under no legal obligation to be vaccinated (although the Government has stated that it intends to consult on this question). The current approach favours employers encouraging employees to receive the vaccine.
Any employer who decides to go down the mandatory route will need to be clear on their reasoning. For example, to help protect colleagues and customers or to assist the development or mentoring of less experienced employees. They also need to consider carefully the circumstances where there should be an exemption to this blanket requirement, for example, those who have a medical condition that precludes them from receiving the vaccine or decline the vaccine on religious grounds, to limit, in this case, the risk of discrimination claims. However, many employers, particularly those with a high percentage of customer facing roles, may consider that, on balance, mandating vaccination is worth the risk from a duty of care and PR perspective.
Can employers make their employees return to the office even if they don't want to?
With home working becoming the (necessary) norm for many over the last 12 -18 months, many employers have decided to take a flexible, hybrid approach to working arrangements.
However, many employers have contracts of employment that contain express contractual terms, which state that employees are office based. In those circumstances, it is open to any employer to require their employees to return to work in accordance with their contract, with any failure potentially amounting to a refusal to obey a lawful instruction.
But on the other hand, as employers are still obliged to comply with Covid secure measures, it may not be possible to operate in a covid secure way with a full office of employees, which could place employers at risk of breaching their duty to provide a safe place of work.
Employers also need to weigh up the increasing levels of anxiety that have been created and exacerbated by the pandemic. Employers are encouraged to take an understanding approach to anxiety (and will be required to do so if there is an underlying health reason for this anxiety) and failing to take any steps to consult or communicate with employees could impact the reasonableness of an employer’s decision to require all employees to attend the workplace.
For those employers who are considering a full return to the workplace, the recommended approach is to communicate with your workforce before doing so and, if the decision is taken to do so, a gradual implementation is likely to meet less resistance. Subject to the circumstances, it will also increase the reasonableness of challenging any later refusal to return to work if that situation arises.