Now that we have a vaccination programme up and running, it does appear as though an end is in (fairly distant) sight to all the disruption to businesses and to individuals. For those who are not in the most vulnerable categories, it seems likely to be sometime before their ‘turn’ in the queue, however the issue will arise at some point for many employers of whether an employee who has reached the head of the queue goes ahead with the vaccination.
For several reasons, mainly to do with the speed of development of the vaccines, there are undoubtedly many people who are either worried about it, or are absolutely certain they do not want it.
So if you are an employer relying on all your employees being safely ‘jabbed’ so you can get back to ‘normal’, where will this leave you?
Clearly you can’t physically force workers to get vaccinated, so the question is whether you can reasonably instruct an employee to get vaccinated, and if they refuse, what options are open to you?
In most cases, requiring an employee to get vaccinated would not be a reasonable management instruction. It’s a private, medical matter, and wouldn’t ordinarily be something an employer could give instruction on. Employees have a human right to a private life and their medical decisions come under that.
If the work your employee is doing is a role where it is absolutely critical that they are vaccinated for safety reasons, such as perhaps a care home worker, or frontline NHS worker, and they are working with particularly vulnerable individuals, you are more likely to be able to argue that it is a reasonable management instruction to require employees to be vaccinated. In that case you should explore the reasons the employee doesn’t want to get vaccinated before deciding to act.
It is possible the reasons may fall into a protected characteristic, if, for example, the employee has a disability meaning they can’t get the vaccine. In that case you’d obviously need to be very careful, and take all steps to adjust the role so that the vaccine isn’t necessary, or look for suitable alternative employment as well, before considering whether dismissal is a fair option. If there are no alternatives and no way of adjusting the role, dismissal may well be fair and unavoidable.
However, for most employers, requiring employees to get the vaccine would not be considered a reasonable management instruction, and if that’s the case for you, what can you do? Your options are as follows:
- You could make adjustments to enable them to continue working without the vaccine, such as continued use of PPE, additional cleaning, social distancing, even after these measures perhaps can subside a bit for others
- You could consider a change to the role if this is a viable option
- You could consider relying on ‘herd immunity’ if the situation is arising at a stage where the majority of people are vaccinated
- You could encourage or persuade them to change their mind
- You could consider a disciplinary warning on the basis that without a protected characteristic being relevant, there’s not really a viable claim they could practically make, however it seems unlikely in most cases that an individual will suddenly be happy to get vaccinated just because they have a warning on their file, so that option may not achieve much
- You could consider dismissing them, however even if they don’t have any protected characteristics, if they have two years’ service they could bring an unfair dismissal claim, and unless you can demonstrate that it was a reasonable management instruction, you’d struggle to argue that dismissal was fair.
If they don’t have two years’ service and cannot therefore claim unfair dismissal, the only concern is whether there is a protected characteristic involved, which would mean they can claim without the two years’ service.
On balance, frustrating as it may seem, in most cases you will not be able to force employees to get a vaccine they don’t want. And in pragmatic terms, if you attempt to force it, you are likely to damage your relationship with your employee severely anyway, which isn’t something you want in the longer term.
Therefore, the best approach if you have an employee who is reluctant will be to understand their specific individual concerns, and see if you can address them, and if not, see what steps you can take to make things safe without the vaccine.
Hopefully by the time this issue comes up for most employees, millions of people will have already had the vaccine, which may help to allay some concerns in itself, but it’s worth being prepared so that if there are concerns, you are aware of them and can be ready to address them or come up with solutions.
If you need any further advice on Covid-19 and your business, do get in touch.