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Can employers force workers to have the Covid-19 vaccine?

At the time of writing some 4.61 million people in the UK have received their initial Covid-19 vaccination, most over the age of 70 and in the main retired. With the aim of the government to ensure that all over 18s have been offered the vaccine by September, increasingly employers will be thinking about how vaccinations feed into a safe workforce and a safe workplace.

Pimlico Plumbers made headlines recently by announcing that they were introducing so called “no jab, no job” clauses in their contracts for new hires. Looking at the detail in this announcement, such a requirement will only apply for new hires. If a current worker has good reasons for refusing the vaccine they are able to stay on provided they are regularly tested. Putting in place a requirement for vaccination is not without its problems, and there are many risks with a compulsory approach.

While employers have an obligation to ensure that they provide a workplace that is safe for all employees, requiring a Covid-19 vaccine as a compulsory condition of employment is unlikely to constitute a reasonable approach to achieving this aim. There is no Government mandate in the UK for vaccines to be given without consent. Even within the NHS (except for very limited circumstances) employees are not obligated to be vaccinated against the usual diseases protected by inoculation. Accordingly, for employers to adopt a compulsory approach for all staff is likely to be problematic.

Such an approach may disadvantage specific groups of employees and invite claims for unfair dismissal, as well as risking potential discrimination issues. Employers in the UK must consider, for example, pregnant women who are advised not to get the vaccine based on the lack of information on the associated risks. Similarly employees with allergies or other health conditions may be unable or unwilling to get the vaccine, so too many individuals with certain religious beliefs. There is also scope for individuals with other sincerely held beliefs to reject the offer of the vaccine. Any protection they would have against detriment or dismissal based on their religion or belief would need to be weighed against the employer’s legitimate interests.

As well as employment issues, care should be taken as to the information of whether someone has or has not had the vaccine, which will be considered as special category personal data, and the appropriate protections about its use considered.

Ultimately, the most productive approach may be for employers to encourage and facilitate the vaccination of their staff, without making it mandatory, for example by allowing staff reasonable time off to attend vaccine appointments. What seems likely is that unfortunately Covid-19 is here to stay and that in the years to come vaccination programmes for the virus may become imbedded into the health system in the same way that the Winter flu vaccine programme is.

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