Vaccination dilemma for employers

It’s a controversial issue that has implications for employers for the foreseeable future.

The so-called ‘vaccine passports’ for travel and entry into public venues, have been condemned by many, including a group of church leaders who said the proposal could ‘bring about the end of liberal democracy’.

Now as the vaccination process gathers pace with more of the working age population becoming vaccinated, businesses need to consider the legal implications of insisting that employees have the jab.

The Government has not yet released any guidance on vaccination for employers. However, existing employment law gives some pointers on how to approach the issue.

As the Government has not legislated for the vaccine to be mandatory, on balance it would be risky (but not impossible)  for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people such as the social care sector.

ACAS guidance advises that employers should support staff in getting the vaccine and detail the benefits of the vaccine to employees, but should not force it upon them.

However, there may be circumstances in the future where it might be necessary to make vaccination mandatory for someone to do their job, for example where they travel overseas and need to be vaccinated to do so.

A recent survey from YouGov suggests that one in five people are unlikely to get the vaccination despite the scientific evidence. Employers will need to develop strategies to deal with employees refusing the vaccine.

Vaccination policies need to be carefully considered to ensure the needs of the business are met but those unable to have the vaccine for medical reasons or due to age (and the vaccine not being available for younger ages at this point in time) are carefully considered.

Important questions that need to be considered:

Can an employee be dismissed for refusing vaccination?

Failure to follow a reasonable instruction can lead to a fair dismissal.

The fairness or not of the dismissal will be multi-factored but mainly will focus on the industry and the potential harm to clients/customers for failure to vaccinate.

Can an employer require an employee to disclose whether they have been vaccinated?

Requiring employees to disclose whether they have been vaccinated gives rise to both data protection and the right to privacy issues. However is some situations an employer will be able to force an employee to disclose

Employers would have to consider why they need evidence of vaccination and whether it is appropriate for the business.

How will a vaccine impact an employer’s COVID-19 risk assessment?

Vaccinations will not fundamentally affect the risk assessment as people can still spread the infection even when vaccinated.

In view of the potential for individuals to refuse a vaccination, risk assessments may need to further developed to determine if additional measures can be put in place if an employee chooses not to be vaccinated.

What does this mean for employers?

Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated once this becomes a realistic possibility for all.

If an employer intends to mandate the vaccine as part of its approach to reducing risks, it should take advice before acting.

For help and advice, contact our expert team at AGS HR Solutions today to discuss your requirements.