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

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.

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.

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

About Jo Moseley

Jo Moseley is a senior associate solicitor at Irwin Mitchell

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

  1. Avatar
    jad 6 Feb 2021 at 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

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      Karl Rainer 8 Feb 2021 at 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;”

      • Avatar
        Crys 12 Feb 2021 at 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.

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          Elsa 14 Feb 2021 at 1:05 am #

          By the law they can faired due to refusing vaccine

        • Avatar
          dorian 21 Feb 2021 at 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.

        • Avatar
          Paul Ryan 23 Feb 2021 at 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

      • Avatar
        Lauren G 21 Feb 2021 at 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.

    • Avatar
      Paul ryan 23 Feb 2021 at 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

  2. Avatar
    Flora 8 Feb 2021 at 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?

  3. Avatar
    Steve 8 Feb 2021 at 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 ) 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?

  4. Avatar
    Karl Rainer 8 Feb 2021 at 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.

  5. Avatar
    Sonia 14 Feb 2021 at 7:50 pm #

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

  6. Avatar
    Gary Dawkins 16 Feb 2021 at 11:25 pm #

    Revelations 13.17

  7. Avatar
    Observer 17 Feb 2021 at 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?…

  8. Avatar
    Lisa 20 Feb 2021 at 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.

  9. Avatar
    Pearl 21 Feb 2021 at 12:07 pm #

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

  10. Avatar
    Peter Grant 21 Feb 2021 at 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?

  11. Avatar
    Angela Davis Shakur 23 Feb 2021 at 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.

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