Covid-19: vaccines and employment law

The promise of an effective vaccine protecting against Covid-19 has given us all a much-needed boost. At present, the only licenced product, from Pfizer-BioNTech, is being supplied only to the NHS in the UK, but the assumption must be that it, and other vaccines currently in development, will eventually become available commercially. At that point, employers will need to consider whether to make vaccination mandatory for all staff, or at least for those who are not working from home.

Employers will need to take account of regulatory advice when formulating a policy for different groups of employees. Those with allergic responses (for whom a vaccine will be recommended) will need to be dealt with separately, as will pregnant employees (who are advised by the current guidance to speak to their doctor before taking the vaccine), and staff with particular medical conditions that may affect their willingness to participate in any vaccination programme.

The Government’s current advice on the Pfizer-BioNTech vaccine is available online here.

This question of whether vaccination can be made a mandatory condition of employment engages a number of legal issues, none of which has a straightforward answer.

• Health and safety. Employers have a general health and safety duty. That must permit businesses to encourage staff to be vaccinated, but whether it allows vaccination to be mandatory is much more debatable. Employees also have a health and safety obligation, in respect of their own health and that of their colleagues. Whether that can be interpreted as requiring vaccination is, again, an untested point.
• Discrimination. Employees may object to being vaccinated for a wide variety of reasons. If that reason is connected to a "protected characteristic", in the language of the Equality Act 2010, any employer seeking to force vaccination would need to show its decision was objectively justified. One can imagine a number of protected characteristics that might be relevant in this context.
  • Some employees may have religious objections to vaccination.  Again, depending on the precise formulation of the set of beliefs, an employer might struggle to avoid a discrimination claim if the employee were detrimentally treated.
  • Some may subscribe to an "anti vaxxer" viewpoint. Depending on the coherence of that viewpoint, the reasons for it, and its effect on the individual’s life more widely, it is possible that it might amount to a philosophical belief qualifying for protection in the same way as a belief founded on religion.
  • Other employees may object to any vaccine containing animal extracts, or that has been tested on animals. If that stance is driven by religious conviction, it will be protected. If it comes from a commitment to veganism, for instance, it might well amount to a philosophical objection also qualifying for protected status.

• Disciplinary matters. Clearly, employers are not able physically to force staff to be vaccinated. The only sanction would be to impose a disciplinary penalty – probably dismissal – on employees who refuse to be vaccinated. Whether termination in those circumstances would give rise to an unfair dismissal and/or a discrimination claim would depend on the facts in each case, in particular:
  • the employer’s reason for insisting on vaccination and the employee’s reason for refusing the vaccine;
  • whether any other steps to mitigate infection were available;
  • the nature of the role; and
  • the precise protective qualities of the vaccine in question.

Firms are likely to have a number of months before vaccines become commercially available, but should look at beginning a discussion of these issues now, including with their employees, health and safety representatives, unions and sector bodies, so that vaccination can be included in firms’ risk assessments, and any potential points of conflict can be addressed in good time. 

Please get in touch with your usual Macfarlanes contact if you wish to discuss these issues further.