“No Jab? No Job.” Can employers require employees to have the Covid-19 vaccine?

All NHS staff in England will have to be fully vaccinated against Covid-19 by next spring unless they are exempt, it was announced yesterday.

The government pressed ahead with its controversial plans despite strong opposition from some health unions and medical organisations.

The announcement follows on from the requirement for care home staff in England to be fully vaccinated by tomorrow (11th November).

It sets England apart from the other UK nations – Scotland, Wales and Northern Ireland have not yet made any proposals to make Covid vaccinations compulsory for NHS workers or care home staff.

The issue of compulsory vaccination for Covid-19 is a live one for all employers, not just those in the health and care sector. The question facing employers now is whether they can or should require their workforce to be vaccinated.

Can employers make Covid-19 vaccinations mandatory?

In the wake of the NHS announcement, more employers might be considering introducing measures to require their own staff to be vaccinated. There are a number of drivers for this; from protecting vulnerable members of staff, customers or visitors, to reducing absence levels as a result of catching Covid-19 or having to self-isolate.

Employers might be considering introducing compulsory vaccination policies, including clauses in employment contracts for new employees or amending existing employment contracts to make having a Covid-19 vaccination a requirement. If this is the case, there are two key things that employers will need to take into account; firstly, that staff cannot be compelled to have the vaccination, and secondly, that they need to consider how they will deal with individuals who refuse to be vaccinated for whatever reason.

If an individual’s refusal to be vaccinated is because they have a disability, or is predicated on a religious or philosophical belief, they might be able to issue direct or indirect discrimination claims if an employer takes disciplinary action. They may also make a claim for constructive and/or unfair dismissal if they are dismissed or resign as a result of disciplinary action or the implementation of employer policies and procedures requiring vaccination.

Can compulsory vaccination provisions be justified?

Employers have a legal duty to ensure a safe working environment. As the Health and Safety Executive states: “It is an employer’s duty to protect the health, safety and welfare of their employees and other people who might be affected by their business. Employers must do whatever is reasonably practicable to achieve this.”

It stands to reason then that requiring staff to be vaccinated could be justified on health and safety grounds. However, for that to be the case it would be necessary for an employer to be able to demonstrate, based on a risk assessment, that compulsory vaccination was necessary. Arguably, in most workplaces, other measures such as strict hygiene protocols, mask wearing, and social distancing may be sufficient to provide a Covid-19 secure work environment.

Another option is to set up a workplace-wide testing programme. By regularly and diligently testing all employees using lateral flow tests and recording the results, employers could demonstrate that they are taking the issue seriously and are invested in the health of their staff.

And of course, many employers still have the option to require their employees to work from home.

It is worth noting that NHS staff are already under an obligation to be vaccinated for other diseases such as Hepatitis B, and some who work in sensitive areas have to undergo regular blood screening and other testing for a range of infectious diseases.

Employers outside the health and care sector will need to demonstrate that the reduction in risk that would result from compulsory vaccinations will justify such an interference with individuals’ basic rights.

Can employers encourage staff to get vaccinated?

For employers whose health and safety risk assessments don’t support a compulsory vaccination requirement for staff, an alternative would be to actively encourage staff to be vaccinated.

The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks. This duty gives employers justification for encouraging their employees to be vaccinated to protect themselves and everyone else in the workplace.

The chances are that most of their employees will want to be vaccinated against Covid-19 anyway, but for those who are reluctant, a gentler approach might have better results and help build respect and trust.

Employers could run workplace education and awareness programmes, sharing NHS information about the effectiveness and safety of the vaccine and countering any misinformation spread through social media.

They might also consider having a designated individual from the HR department available to speak to employees on a one-to-one basis about the vaccine to allay any fears or misgivings they might have.

Whether or not the government’s NHS vaccine mandate will ultimately have any wider implications for other employers remains to be seen. But knowing the legal situation will definitely help employers when it comes to having conversations with their staff.

For more information, please contact Helen Snow or the Employment team.

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