07 January 2021
Can I say ‘no’ to going to work if I have not yet had the vaccine?
We are receiving many Covid-19 related questions in the light of the recent government announcements. However, one of the most common ones is from employees who are asking if they can say “no” to going to work if they have not yet had the vaccine.
At the moment at least, the introduction of the vaccine will only have marginal significance given that currently, the vaccine is only available to a limited part of the workforce. However, as the vaccine is rolled out to the wider community and to people of working age, this will become an issue. Employers may have to grapple with the conflicting issues of employees who have not had (or refuse to have) the vaccine and how that will impact on the rest of the work force who perhaps feel uncomfortable working with unvaccinated colleagues, especially if they are yet to receive it.
The ingredients of the vaccine may also throw up ethical and religious issues. There has been some discussion about this, and some people believe that it contains gelatine or foetal tissue. That could lead to issues of religious or philosophical belief discrimination claims for those employees who do not wish to have the vaccine on those grounds.
However, these are all questions for the future. For the moment at least, the question is and remains as it was in March 2020 onwards - can my employer force me to come to work if I do not feel safe to do so.
Much will depend on why employees feel this way. The position at present is that in accordance with current government guidance, all employees should be allowed to work from home if they can. However as has been much debated, not all employees can work from home e.g. the manufacturing sector, care homes, medical sector etc. In such circumstances, employers must conduct risk assessments depending on the circumstances of the employees in question and in any event, ensure that their premises are as Covid secure as is reasonably possible.
A failure to provide a safe place of work in circumstances where employers refuse to comply could lead to potential claims for breach of contract, constructive or actual unfair dismissal, especially if the reason why the employee is nervous about coming not work is because they are clinically vulnerable in some way or live with someone who is. Forcing them to do so and thereby putting their health and safety at risk could also lead to other claims such as for disability discrimination as well as an automatic unfair dismissal claim.
It is of course important for employers to keep the dialogue going with such employees whilst they consider other options e.g. the furlough scheme (while it still exists) or, if appropriate, SSP.
Employers should therefore make themselves aware of their legal obligations in this area and ensure that if their employee do have to physically attend, that they are safe to do so. They should carry out regular risk assessments and ensure that the situation is continually monitored to ensure compliance is maintained.