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General Data Protection RegulationCoronavirusBelief discriminationVaccinationsHealth and safety

No jab, no job? Six Covid vaccination questions for HR

by Jo Moseley 20 Jan 2021
by Jo Moseley 20 Jan 2021 Peter Hermes Furian / Anna Leni / Shutterstock
Peter Hermes Furian / Anna Leni / Shutterstock

Last week, the owner of Pimlico Plumbers said he wouldn’t offer a job to anyone who hasn’t been vaccinated. Given that the general working population haven’t been offered the vaccination yet, his approach is somewhat premature. But, the issue of whether employers can insist that staff take the Covid-19 vaccine when it’s offered to them is one that many are starting to grapple with. Jo Moseley examines the law.

1. What has the government said about vaccination?

There is no legal basis the government can rely on to force people to be vaccinated and people won’t be forced to have a vaccine if they don’t want one. Instead, it wants to persuade people that the vaccines are safe and that it’s in everyone’s interests to have one so that we can get back to some sort of normality. Clearly, if the government can’t legally compel people to be vaccinated, you can’t frog march your staff to the nearest vaccination centre either.

The government hasn’t published information about vaccinations which is directed at the general public. However, its guidance for frontline healthcare workers is instructive. This explains the benefits of being vaccinated for the individual (reduced chance of catching Covid or becoming seriously unwell if they do) and to the wider population (less likely to infect their friends, family and to the vulnerable people they care for).


2. Do the rules about health and safety at work provide any guidance about Covid vaccinations?

No. Section 2 of the Health and Safety at Work Act 1974 requires employers to take all reasonably practicable steps to reduce workplace risks to their lowest practicable level, but that doesn’t include procuring the vaccine and offering it to their staff (which would be extremely difficult anyway given the huge worldwide demand for the vaccines).

However, to reduce the risk of catching or spreading Covid to others at work, you can – and should – strongly encourage staff to take the vaccine when it is offered to them. That doesn’t mean that you should relax your efforts to make your workplace ‘Covid secure’ as, until the vast majority of the population are vaccinated, these precautions still remain the best way of protecting your staff.


3. Is it a ‘reasonable instruction’ to ask staff to take the vaccine?

This is important because, as a matter of contract and employment law, if you can establish that asking staff to take the vaccine is a reasonable management instruction and they refuse, you may be able to justify taking disciplinary action against them for disobedience.

Employment lawyers disagree about whether it is reasonable to ask, and take action against, any member of staff who refuses to be vaccinated. It depends on a number of factors – the most important of which is whether vaccination will protect other members of staff or people they come into contact with such as patients, school children, customers, service users etc? Both the government and the World Health Organisation (WHO) advise that vaccinated people are much less likely to transmit the virus to others.

So, it’s not just about the amount of risk an individual is prepared to take in respect of their own health because choosing not to vaccinated affects other people. But the degree to which other people are impacted will vary. At the one end of the scale are health care professionals who are much more likely to be exposed to Covid and pass it to others. It’s therefore likely to be reasonable to instruct frontline staff to be vaccinated. But, it’s much less likely to be reasonable where staff have limited contact with others and there are other measures you can put in place to protect them.

The other issue to consider is that most people haven’t yet been offered a vaccine. The initial roll out prioritises ten groups in order of need. Even if the majority of your staff won’t be offered a vaccine for a while, we suggest you start to think about your approach and give your staff advance warning of it.


4. If we make a reasonable request for staff to be vaccinated, what can we do if they refuse?

That depends on the reason they give you for refusing. Although the vaccine is approved for use in most adults, there may be specific reasons why it’s not recommended for some people. The government acknowledges that ‘a very small number of people who are at risk of Covid-19 cannot have the vaccine – this includes people who have severe allergies’. Anyone who is advised not to have the vaccine will, obviously, be able to reasonably refuse to have it.

Covid-19 vaccinations at work

Coronavirus: Policy on employees being vaccinated

Covid-19: Should employers grant time off for vaccinations?

Covid-19: Will ‘anti-vaxxers’ pose a problem for HR?

What about pregnant women? According to the NHS, most pregnant women won’t routinely be offered the vaccine unless they have a high risk of getting coronavirus because of where they work or, if they have a health condition that puts them at greater risk.

Staff may be worried about having the vaccine. The WHO refers to this as ‘vaccine hesitancy’ and, says this is one of the top ten threats to global health. Some groups – such as in Black or Black British Groups also appear to be more reluctant than others to be vaccinated. Discuss their concerns and signpost where they can obtain reliable, impartial information before taking any sort of action against them.

You may also have to consider whether individuals who refuse the vaccine are protected under the Equality Act 2010 on the basis of their religion or philosophical belief. There are a small number of religious groups that disapprove of vaccinations. Other groups – such as vegans – may disapprove of the vaccine because animal products were used in their development.

If your policy adversely affects people from a protected group (race, age, sex, disability and religion or belief being the most likely) it will potentially be indirectly discriminatory and, if challenged, you’ll have to justify your approach.

Anti-vaxxers subscribing to the myriad of conspiracy theories doing the rounds are unlikely to be protected because they have to show that their beliefs are worthy of respect in a democratic society.


5. Can we dismiss anyone who unreasonably refuses to be vaccinated?

Potentially, yes, provided you can show that taking the vaccine is a reasonable management request. You must consider alternatives first – such as permanent homeworking or moving them to a role where they don’t come into contact with many people and consider the reasons why they have refused.

You’ll also need to warn the employee and give them a final opportunity to comply before deciding to dismiss them, which should then be subject to a right of appeal. Dismissal should be on notice.

Given the potential to get this very wrong, we strongly recommend that you take legal advice before taking any action against someone who has refused to be vaccinated.


6. Can we insist that our staff tell us if they’ve been vaccinated?

That depends on whether asking them to be vaccinated is a reasonable management instruction. If it is, you’ll need this information to check compliance. Information about who has been vaccinated will constitute sensitive personal health data and you’ll need to comply with GDPR. The same will be true of information about who has not been vaccinated and why.

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If you can’t demonstrate that asking staff to be vaccinated is a reasonable management instruction, don’t insist they provide you with this information. You probably shouldn’t even be asking staff to volunteer this information unless you have a good (lawful) reason for needing to know the answer.


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Jo Moseley

Jo Moseley is a senior associate solicitor at Irwin Mitchell

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46 comments

jad 6 Feb 2021 - 1:12 am

Dismissing people for refusing a vaccination is surely the start of going down the road of discriminating against people who have certain medical conditions etc and make a lot of people unemployable and having to claim benefits for the rest of their lives

Karl Rainer 8 Feb 2021 - 5:36 pm

The lawyers are going to have a field day. 20% of carehome staff have declined the vaccine. Are they going to sack them all and risk expensive law suits? Coercion to take a vaccine, especially that hasn’t gone through long term safety trials is a legal minefield. Interestingly the EU are finalising Resolution 2361 (provisional Jan 2021) which prohibits mandatory vaccines or coercion. See clause 7.3.1 “ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves;” and 7.3.2 “ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated;”

Crys 12 Feb 2021 - 4:13 pm

I am one of the employees who has been asked to take the vaccine or if I refuse they will give me a two weeks notice. I don’t want to take the vaccine because I don’t trust these Covid vaccine. I am not against vaccination, is just these vaccines are experimental and I don’t want to be part of the experiment.

Elsa 14 Feb 2021 - 1:05 am

By the law they can faired due to refusing vaccine

dorian 21 Feb 2021 - 4:02 pm

Quote EU resolution 2361-clause 7.3.1 “ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves;” and 7.3.2 “ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated;” . I also believe that if you ask for the ingredients sheet of the jab they have to provide it, ask does it have potential interactions with other medication, which I believe even supplements and other herbal/holistic products could be classified as. If it does (it does have the potential for interactions) then that I believe would be cause to refuse. Remember it is illegal to force a vaccine against your will and it is not law that you have one.

Paul Ryan 23 Feb 2021 - 11:30 am

I wouldn’t have anything to do with a health care worker who hasn’t had a covid jab and neither would my sensible work mates we’ve all had the vaccine with no side effects and we’re all releived were safe and only a few have refused and there high risk groups

TJ 24 Feb 2021 - 4:16 pm

Why? If you got vaccinated, then you should have nothing to worry about…

Simon Charles 24 Feb 2021 - 6:44 pm

I do not know a single person who has had the vaccine that was not ill for 2-3 days and believe me there have been more than 20 so far

WW Agin 9 Mar 2021 - 6:10 pm

So agree with TJ on this one @Paul Ryan… Have you ‘feared’ those whom have not taken the annual Flu Shots in the past? Especially if you yourself took the shot. I just do not follow your mindset on this, sorry.

Christopher Hooton 13 Mar 2021 - 10:58 am

Why. This vaccine is not a vaccine in the true definition. It is gene therapy. This is explained quite openly in AstraZeneca’s own information online. It’s a combination of cloned cells from a 1975 legally aborted fetus and the common cold of the chimpanzee. When you take thus vaccine you can still catch the infection and still pass it on. You still have to maintain social distancing and wear face coverings. Did you know that the suspect virus, SARS-cov-2 has never been isolated nor purified?. Infact no quantifiable sample exists anywhere. There is still a substantial financial reward in place for anyone isolating and purifying the virus. Die you know the PCR test has been ruled as unreliable by the Appeals Court in Portugal?

Mark 16 Mar 2021 - 1:23 am

can see you have already been brainwashed. The NZ govt will now go down the trail of divide and conquer by pitting the vaccinated sheep against the unvaccinated who refuse to take an “experiment” – it cannot be labelled a vaccine, because it simply isn’t one. Breach of human rights and Nuremberg code to force any medical experimentation. So if you want it – good for you.

jimmy lee 20 Mar 2021 - 7:44 pm

Long term no one knows

Joanne 25 Feb 2021 - 10:40 pm

I completely agree with you, I feel they are more than willing to take the chance in giving us a vaccine, than a total collapse of the economy, vaccines which has no data for the long term side effects and very little published data of those who gave experienced side effects. We are all Guinea pigs. I know quite a few people who have had the jab, some under duress, and none were informed about completing the yellow card system form for reporting side effects! Why, surely the data would be beneficial in strengthening their argument for having the vaccine, or perhaps not and thats why their not telling people about the form.

Lauren G 21 Feb 2021 - 7:39 pm

Hi I have just had to leave my GP who won’t give me essential asthma tests unless I am vaccinated,, absolutely vulgar human being belittled me which this also speaks volumes to the motives behind these vaccines. I do not believe for a second that they are for our own good not a chance in hell.. This is happening here in Lancashire.

Paul ryan 23 Feb 2021 - 8:32 am

No I don’t want to meat in vaccinated people obviously medical conditions are valid and you wouldn’t be vaccinated covidiots would besacked

Covid1984 26 Feb 2021 - 11:39 am

Sheep’s getting led to slaughter. You have an immune system use it. Don’t rely on a needle with something you know nothing about being put into your system. That’s ignorance. Let people choose. If you are on one side then so be it. But as human beings we are allowed a choice. By not having the jab there is a 0.003% chance of death. Buy having the vacinne, well who knows we won’t for 20 to 40yrs. So it’s a choice if you trust the government and believes they have your health at heart go for it. If you don’t don’t. We are all built up from our own experience of life so we all see things different. Discrimination is put into our minds from the top down.

WW Agin 9 Mar 2021 - 6:34 pm

Agreed 100

PC 2 Mar 2021 - 12:49 pm

That would depend on the medical conditions. Medical conditions generally don’t put other people at risk. However some do, such as epilepsy, which is not good for bus drivers, airline pilots, brain surgeons, etc.

Refusing to take the Covid vaccine may be a personal choice based on strongly held convictions, but lots of people have strongly held convictions, religious or otherwise, and yet they are still subject to the law. If by refusing a vaccine they put other employees at risk, the employer must act to protect those other employees.

Your right to your conviction ends at my right to not be adversely impacted by it.

Mark 16 Mar 2021 - 1:25 am

Dont agree – there is no proof that refusing the vaccines constitutes “any risk” it is only PERCEIVED risk.

Flora 8 Feb 2021 - 9:48 am

Hello Jo

I have been put on a list at work to have the Pfizer Covid vaccination. I was not consulted to give my consent to be on this list.

An e-mail was sent around the workplace after working hours on a Thursday telling people that if they didn’t want the vaccine they needed to tell HR by the end of that Friday – the day after the e-mail. As I don’t work on a Friday and had finished work on the Thursday at close of play before the after hours e-mail was sent I think that my employer has a) breached my confidentiality by handing over my name and contact details to the local council vaccine programme and b) going ahead and adding me to the list without my prior consent.

What do you think?

PC 2 Mar 2021 - 12:57 pm

You could raise a big stink about this, go to court, cause lots of money to find its way into the hands of lawyers, waste time, and achieve nothing of value.

Your employer was a bit too fast. Talk to them at the earliest opportunity. Reasonable people do that sort of thing. It would be a stupid employer who risks legal trouble by not accepting your late notification of your preference.

As for passing info to the local council vaccination program: If you are in the UK, you will have an NHS number. The NHS holds records and issues notifications to people when it is their turn to be vaccinated. The alternative would be millions of people making phone calls to find out what to do. The well-publicised advice is to wait until you receive notification.

So when you say ‘passing info to the local council vaccination program’, I don’t really know what you mean. You mean to try to get employees further ahead in the vaccination queue? That goes against the government’s laid-down rules which prioritise people according to risk.

At the moment in the UK there is no mechanism for jumping the queue, so the idea of forcing people to have vaccinations is kind of moot for now.

Steve 8 Feb 2021 - 4:47 pm

Hi Jo, Would the fact that all the current vaccines are all only approved for ’emergency’ use as none of them have completed their full course of trials yet (see here for further details https://off-guardian.org/2021/01/03/what-vaccine-trials/ ) have any bearing on employers insisting on their use?

Could I for instance place a caveat on taking the vaccine of only having it after it’s been approved for full use?

Roy 25 Feb 2021 - 2:35 pm

I think this is disgusting and not Lawful. Take it to a solicitor because it comes under the clause sec 7.2/3 humans Rights Act . Of Discrimination and you could take your company to court.
You can not be forced into having the vaccine. You have Your Rights. It’s not been tested properly and has not had the appropriate test trails.. Thats Your Right if you don’t want to have the vaccine. And should not be forced or pressured into having it

PC 2 Mar 2021 - 1:00 pm

Just to remind you, there is a pandemic in progress, and people are dying. These are not normal circumstances. You might want to take that into account before getting all legalistic.

anag 8 Mar 2021 - 6:13 pm

in progress of finalizing its course, thats after finishing with the flu.

Mark 23 Mar 2021 - 12:38 pm

There is on the TV.
https://www.gov.uk/government/publications/coronavirus-covid-19-vaccine-adverse-reactions.

nearly 600 dead from both jabs here and all they can talk about is ‘blood clots’

It is not fully approved.
It is against the Nuremberg code to force medical procedures.
IT DOES NOT STOP TRANSMISSION. There is NO argument to have it if healthy.

WAKE UP.
If you are afraid of kung flu it stay in, better still turn the TV off and it goes away.

https://www.openvaers.com/covid-data

Karl Rainer 8 Feb 2021 - 5:29 pm

A critical factor missing from this debate is the lack of long term safety testing for the principal Covid-19 vaccines on offer which many are concerned about.. We know about short term adverse reactions but nothing about long term side effects. Remember the Swine Flu vaccine and narcolepsy.. Pfizers long term human trials don’t conclude til end of 2022. Normally safety trials are at least 4 years. Therefore any employee would be within their rights to decline the offer before a long term safety profile is available to doctors and the public, given we don’t know yet what the long term side effects are. Also it would be reasonable request by employees to ask employers to provide life long medical cover incase they suffer significant long term side effects from these vaccines. Once the vulnerable groups and over 50s have been vaccinated by late Spring with any luck, hospitalisations and deaths should be significantly reduced, so they may well be no need to try to compel vaccination amongst employees. Many employees may well choose to work at home, as home working is now well established in many industries.

PC 2 Mar 2021 - 1:06 pm

There will undoubtedly be employees who refuse the vaccine for one reason or another.

They will primarily be people who feel they are not at risk personally (ie they are likely to be young and health), or think Covid is a hoax, or think they are ‘covered in the blood of Christ’ (to use a term that has become known in the media), or are just prickly obstinate types (there are always some).

What you can be pretty sure of is that the employees who know they are at risk will be very motivated to get vaccinated at the earliest opportunity (unless they have been taken in by hoaxes and cults). In the UK, the take-up of vaccinations among high-risk groups has proven to be very high.

Tom 21 Mar 2021 - 9:33 am

Wow just wow. Caling people cultists and other names because they refuse to be lab rats. There is already proof that the AZ shot is causing blood clots, you can get a stroke and die. Recently I had a tetanus shot because its safe and tested. The covid vacine is a gamble thus I am worried. If I die or become crippled who is going to be responsible? Can I get insured for side effects? Why the pharma companies are exempt from any responsibilities?

Sonia 14 Feb 2021 - 7:50 pm

Wow first step to a dictatorship, what happened to freedom of choice

PC 2 Mar 2021 - 1:15 pm

Freedom to put yourself at risk is one thing. Have at it. (But don’t expect everyone else to pick up the tab when it goes wrong.)

But if exercising your freedom puts other people at risk, that’s a different matter, and the reason why we have laws.

How about the freedom to practice brain surgery without a licence? Or the freedom to go thru red traffic signals? Or shoot guns in the air to celebrate weddings? Or cut off foreskins on innocent male children? All these things impact other people. All are subject to laws.

Life is so much better when people are willing to get along.

anag 8 Mar 2021 - 6:14 pm

emergency vaccine used to coerce our freedom into a digital pass .

Maxine 12 Mar 2021 - 7:56 pm

People smoking puts me at risk, but they’re still allowed to do it.

Gary Dawkins 16 Feb 2021 - 11:25 pm

Revelations 13.17

PC 2 Mar 2021 - 1:22 pm

It’s a short piece in an ancient collection of tales by people who had no idea of the future and no understanding of nature such that they even regarded air movement (wind) as the activities of invisible beings (spirits). Time to put it in perspective. It’s 2021 CE, not 21 CE.

Observer 17 Feb 2021 - 3:15 am

I’d agree to get vaccinated if my employer signs a contract, that they take responsibility for any adverse effects of the vaccine especially disability… and they’ll take care of my family and financial affairs in case of my death. they sign and I take the vaccine. otherwise leave me alone and let me take care of me and my family the best I can… if you’re vaccinated – the vaccine should protect you, shouldn’t it? – you’ll be safe, it is therefore me who should be worried, not you, right? well I’m not worried because I’m living a healthy lifestyle (no alkohol, almost no sugar, almost no meat), taking supplements, exercising, wim hof’s cold showers and haven’t been sick in last 10 years (not even a cold or runny nose). my immune system is stronger than it was 25 years ago when I was 20yo… so what risk do I pose? appart from big pharma and big food corp?…

Lisa 20 Feb 2021 - 1:11 pm

The drug companies have a clause to get out of paying people who it makes ill with the vaccine. I shouldnt be forced to have it as i take ivermectin and keep my immune system in tact. Why are the pharma companies not telling the masses of this and many test trials have been done on the brilliant results and recovery rates of ivermectin. Its because it costs 2 dollars and they wont make their money from it. Alumn is in these vaccines and other metals and long term studies have not been done fir a long period of time to know the effects, and they are going to re vaccinate after 4 months.Fauci says he takes vitamin d3 and c why weren’t the masses told to increase d3 levels as a prolaxis? Now they are lierally forcing people to have this vaccine, remember the so called thalidomide vaccine that was supposedly safe! Not.

Pearl 21 Feb 2021 - 12:07 pm

Ian a pensioner who is allergic to everything. I do not
Want the vaccine, also I am terrified of needles.

Peter Grant 21 Feb 2021 - 3:25 pm

“However, to reduce the risk of catching or spreading Covid to others at work, you can – and should – strongly encourage staff to take the vaccine when it is offered to them. “

Please could you explain how this works, given that there’s no evidence that any of the vaccines prevent transmission?

Angela Davis Shakur 23 Feb 2021 - 9:01 am

People should have sovereignty over their own bodies. An employer should not coerce, persuade or demand anyone to put medicines in their body that they don’t want. It really is as simple as that. If said employee suffers an adverse reaction or a long term auto-immune condition, should they expect employer to cover financial cost of treatment, sick pay? etc etc. Stop normalising healthy people taking experimental drugs. It’s nothing short of a dictatorship.

Patti 7 Mar 2021 - 6:22 pm

I don’t know anyone who has had the vaccine do any serious research over the last 12mnth.,
I wonder how many selfish ppl have had it so just they can rush to book a hoilday abroad and risk taking in to another country or bringing it back here.
I love my hols but Me and my partner are happy to stay in England and support our own beloved country and its acconomy, no matter how long it takes.
There’s a far bigger picture begind all this guys. Saving mother earth, climate change, artificial inteligence.
Time will tell.

Patti 7 Mar 2021 - 6:25 pm

PS Sorry for the spelling mistakes, i am making tea and reading past post… all very interesting

R S 11 Mar 2021 - 11:17 pm

In a country with 68 millon 125 000 people have died. Thats less than 1%. This is not much. Its terrible for the families of those who died but all in all not a lot.
I understand its a pandemic but complete Lockdown would have worked better.
Do not be tricked into putting chemicals into your body instead build up natural immunity from within.

Mark Bennett 12 Mar 2021 - 12:23 am

Its not a vaccine. Its an untested gene therapy jab. Stop calling me selfish because i do not want to play a real game of russian roullette with my life. My gut feeling has never been wrong in my 57 years on this earth. Not once ever. Asymptomatic and superspreader are both proven falsehoods. And my gut feeling is not to go anywhere near this jab. We are not being told the truth. Thats why i do not trust anyone and that means you to tell me what i do with my body. You want the gene therapy go ahead. I am not telling you what to do so jog on.

Irene Reeve 15 Mar 2021 - 11:39 am

More people die of flu and TB than will ever die of the designed Sars2, 30 million died of Aids, Bill Gates is in the process of designing a Sars3
The flu vaccine lowers your immune system which is partly why so many people died in care homes of the Sars2 jab, Norway and many other EU and countries worldwide are refusing to give any the experimental vaccines to older people..
Fauci visited the Wuhan Laboratory in 2019, its all going to be revealed, and by the way the phrase loved by Trump, ‘conspiracy theory’ was coined by the CIA during the Vietnam US war.

https://childrenshealthdefense.org/defender/vaers-reports-death-up/?

michaela Dean 20 Mar 2021 - 12:47 pm

I had the vacine and apart from a tender arm i am fine. My son and daughter has had it and are fine. We will be having the secound one. We All have our own choices and that is up to each and every one. I feel i may be ok if i got covid but maybe the people i am around and come into contact with may not be. Everything new is suspect and if it causes side effects in years to come then one will have to deal with it and hopefully it will be ok. ONE COULD LOOK online and see a for and against almost anything. We now know that a juice we were giving our babies is not good and it was taken off the shelf. So yes everyone has a choice we will not all agree with each other. Life. But I will not be called stupid for having the vacine as i have heard people say. As we have freedom of choice this is mine. I do not care to convince people to have it even my own family it is their choice. So just putting what i feel about it my choice no one else’s. Thank you

Comments are closed.

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