As the Covid-19 vaccine continues to be rolled out across the UK, more employers and employees are asking questions about mandatory vaccination and how their rights are affected. Legally speaking, no employer can force an employee to be vaccinated. That said, there are certain scenarios where an employer can take action if employees refuse the vaccine.
Can an employer dismiss an employee who refuses to be vaccinated?
The answer to “can an employer dismiss an employee who refuses to be vaccinated?” isn’t as straightforward as you may initially think.
There are many reasons a person may choose not to have the Covid-19 vaccination – pregnancy, disability, and religious beliefs, are just a few factors people will consider when making their decision. It is a person’s right to choose whether or not they wish to be vaccinated. But, when it comes to having a mandatory vaccination policy in the workplace, it does on occasions come down to more than the employee’s freedom of choice.
Let’s look at a scenario where the employee may pose a health and safety risk to others. For example, in a healthcare setting, certain measures will need to be taken into consideration to ensure the safety of vulnerable patients and care home residents. An employer is able to change the terms of an employment contract to make it a condition for staff to be vaccinated. In a workplace where there are risks of health and safety issues, employers may feel it is necessary to take action against employees who are refusing the vaccination. In this particular scenario, an employer may be able to dismiss an employee who has refused the vaccination without an justified reason. This should be reviewed on a case by case basis, reviewing the individual circumstances to avoid discrimination.
What discrimination issues can arise from a mandatory vaccination policy in the workplace?
If an employer chooses to implement a mandatory vaccination policy, they will likely consult employees and carry out risk assessments to protect vulnerable patients or staff.
Information about the vaccine should be made available for employees to allow them to make an informed decision. As the vaccination roll-out is new, this area of law is constantly developing and results in certain ‘grey areas’. The actions of both employers and employees will have to be very carefully navigated. Any differentiation in treatment of staff who have or have not been vaccinated, whether that be dismissal or otherwise, could lead to claims of indirect discrimination.
The introduction of a mandatory vaccination policy must be justifiable by the employer as a proportionate means of achieving a legitimate aim such as ‘protecting the vulnerable’. With that in mind, employees can only be fairly dismissed if they unreasonably refuse to be vaccinated. The following characteristics present a common area of concern with regards to mandatory vaccination and workplace discrimination:
Mandatory vaccination: Pregnancy
Those who are currently pregnant, breastfeeding or trying to get pregnant are being advised not to have the vaccine. Both medical professionals and the UK Government have offered this guidance. Dismissing an employee in this category who refuses to have the vaccine could result in a claim for unfair dismissal and/or discrimination.
Mandatory vaccination: Disability
The same concerns arise for those with disabilities. Medical practitioners have advised certain individuals with medical conditions, such as those with severe allergies, not to be vaccinated. Employers should make reasonable adjustments where required.
Mandatory vaccination: Religion and Belief
Many people may choose not to be vaccinated due to their religion or belief. In employment law, a belief can be defined as a “philosophical belief that is genuinely held, that is cogent, serious and applies to an important aspect of human life or behaviour”. For this argument to hold up in an employment tribunal, the belief must be worthy of respect in a democratic society, and not affect other people’s fundamental rights. The anti-vax viewpoint may be questionable as a protected belief, however whether or not it would qualify would be decided by a court.
How to make an unfair dismissal or workplace discrimination claim
If you believe you have been unfairly dismissed or are facing discrimination in the workplace for refusing the Covid-19 vaccine, our dedicated team of employment lawyers are equipped to represent and support you with your claim. Our employment law team will work closely with you to make sure you get the best possible support with your claim. Working with experienced employment lawyers will increase your likelihood of receiving the full compensation amount.