What are mandatory vaccinations?
Mandatory covid vaccinations are one of the stricter methods used to ensure that employees get vaccinated. This could involve dismissal if they refuse, or excluding them access to certain areas/buildings of the workplace.
The UK government’s general approach
The UK as a whole does not have any mass covid vaccine mandates in places regarding the fact that nobody can be punished for not getting vaccinated. However, the health sector has recently implemented vaccination as one of its essential job requirements, which is especially the case for care homes and care home workers. An actual mandate for frontline care workers was also planned to be set in place from 1 April 2022 but as of the current time of writing been scrapped by lawmakers.
The legality of these measures placed within the health sector are therefore unclear; however great focus has been placed on obligations to prevent unvaccinated employees from entering certain premises or workplaces instead of outright punishing them. It is therefore the case that while there are no laws supporting mandatory vaccinations, current measures heavily lean on creating a strong pressure for employees to seek vaccination by making it hard to do their job without it. While this is most prevalent in care homes, softer measures are often taken by employers operating in other industries as well.
Workplace mandates legality for employers
One of the main reasons why vaccinations are deemed to be so important within the health sector due to the fact that employers have a legal duty to ensure safety in the workplace, which creates a strong argument for measures to be put in place that ensure employee vaccination as many of them will be working with vulnerable individuals. That is why organisations such as the Care Quality commission (CQC) have found greater reason to justify the implementation of mandates more than most other types of workplaces.
In regards to workers in other industries outside of the health sector, things are a bit different. This is because the key legal problems with mandating the vaccine for employers are the risks associated with dismissing employees who refuse and have over two years’ service due to them being able to claim unfair dismissal, as well as the potential for discrimination claims from employees with protected characteristics. It should also be noted that, people with disabilities or those with a medical exemption are protected by the disability provisions within the Equality Act 2010, meaning that employers will not be able to prevent them from entering or working at the workplace.
It could be argued that refusal to get the vaccine may constitute an unreasonable failure to comply with a reasonable management request, especially if it is supported by the terms agreed in the employment contract. However, the law here is still very unclear due to a lack of previous case law concerning these circumstances, therefore making the idea of going to court over this issue a very uncertain risk to take for employers. Some employers are redrafting their contracts to allow dismissal for new non vaccinated employees in hopes of finding a more reasonable way to deal with this issue.
Another very new issue to consider is that there will be data protection implications where employers require staff to confirm their vaccination status. This will amount to special category personal data, meaning that it is subject to stricter regulation.
A ‘no jab, no work’ policy
Some employers have put a ‘no jab, no work’ policy, meaning that if an employee refuses to get vaccinated they will be dismissed. This approach is not supported by law and is generally not advisable as better ways could be used to persuade more employees to get the vaccination, without the significant risks of the dismissed employee taking the matters to court or tribunal.
The Advisory, Conciliation and Arbitration Service (ACAS) also encourages employers to find other ways to support and encourage vaccinations without making it a requirement for employees. Specifically, engagement through good communication will help employees make informed decisions regarding their vaccination. Explaining and encouraging employees with impartial, factual information will keep them informed about the workplace impact and risks of COVID-19.
