On 2nd December 2020, the UK became the world’s first country to approve a vaccine (Pfizer-BioNTech). Less than one week later, the first vaccine was given.
Whilst the vaccine programme provides what appears to be a welcome light at the end of the tunnel, there remain issues regarding whether or not employees can be forced to have the vaccine and whether the employer can take disciplinary action if they refuse.
The so-called “no jab no job” argument continues to dominate discussions and there are a number of legal considerations and hurdles to be overcome. The obvious question that employers across the UK is:
Can employees be compelled to have the vaccine?
Unfortunately (or fortunately) depending upon your point of view, the simple answer is no.
Employment law always throws up challenges and the starting position I suppose is that there is currently no legal requirement for anyone to receive the vaccine in the UK. Therefore, it stands to reason that employees cannot be forced to be vaccinated.
However, many employers will feel that it is reasonable to expect the workforce to be vaccinated and may be inclined to take disciplinary action against those who refuse. However, employers need to tread carefully and examine each case individually. There is a general principle that employees must be expected to carry out reasonable and lawful requests and that any refusal without just cause is insubordination which can be treated as gross misconduct justifying summary dismissal. The employer would need to consider whether the refusal could be legitimate. There may be genuine health, religious or philosophical belief concerns but these must extend beyond “internet conspiracy theories that the vaccine is unsafe”. They should then be weighed against the reason for insisting that the vaccine needs to be taken.
There is no “one size fits all” solution and unfortunately, there remains a theoretical risk. Some comfort for employers is that fact that if an employee does not have 2 years’ service, they cannot claim ordinary unfair dismissal. They would have to rely upon a discrimination angle or health and safety related reason. This would be more difficult to prove and may dissuade would-be claimants who might otherwise be tempted by the provision of a “no win no fee” service offered by many solicitors and advisers.
The employer’s argument could be developed along the lines that if an employee cannot provide a legitimate reason for refusing the vaccine, arguably, they are then not ready, willing and able to work and therefore are not entitled to pay. Employers would also be expected to consider whether the individual could continue to work remotely and this would not only contribute towards safeguarding the remainder of the workforce but it would allow both parties to avoid a potentially complicated legal case. As with most employment disputes, communication and careful handling is the key and it may come down to good old common sense and fair play to achieve a workable solution.