Vaccine rollout: Can your employer force you to be vaccinated? Know your contract rights

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Vaccine hopes are relatively high at the moment with a number of potential options coming down the line. While many are welcoming of this, it could create unexpected issues with employability and getting back into the office.

Recently, Charlie Mullins, the chairman of Pimlico Plumbers, caused controversy as he detailed his firm planned to rewrite their worker’s contracts to require them to be vaccinated against coronavirus.

Should staff refuse, Pimlico Plumbers detailed it would decide on a case-by-case basis whether workers would be kept on.

News of this may worry workers across the UK, especially those who are scheduled to receive a vaccine last.

Fortunately, Vanessa James, a Partner at Ashfords, broke down the legal legitimacy of this: “Whether an employer’s mandatory requirement for employees to have a Covid-19 vaccine places an employer at risk of legal action will be determined by the reasonableness of the requirement itself and how it is imposed on a case by case basis rather than just amending the employment contract.

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“Changing employment contracts can normally be done subject to compliance with various legal hurdles, but the success in defending any legal challenge to imposing vaccines on employees means demonstrating clear business and operational reasons to establish the requirement is effectively a ‘reasonable instruction’ in the course of the employment.

“Some businesses may satisfy this relatively easily with a risk assessment – such as those in frontline care with vulnerable groups or even where the work involves entering peoples private homes – but for many employers this will be harder.”

Vanessa went on to break down the instances where employers may face problems with their actions and employees could have protections: “Dismissing those who have over two years qualifying service who refuse the vaccine will result in unfair dismissal cases where the employer will have their grounds for declaring the requirement a ‘reasonable management instruction’ adjudicated upon by the Employment Tribunal.

“As there is no legal definition of what constitutes a ‘reasonable management instruction’ some employers in this situation will find themselves with adverse decisions where the Tribunal do not agree that the requirement was reasonable and justified in their case.

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“Some of those who decline the vaccine will have Equality Act protection from discrimination – such as those who are pregnant, who cannot take it for medical reasons or due to religious belief – and the employer will need to consider adjustments to accommodate those people wherever they can.

“If these protected groups are not accommodated then claims for discrimination will follow that are likely to succeed.

“Complexities (and costs to the employer) will arise where ardent ‘anti-vaxers’ seek to establish their refusal as part of a ‘belief system’ that qualifies them for Equality Act protection from discrimination as well.

“Asking for proof of an employee being vaccinated and retaining such information will also have administrative challenges due to an individual’s rights under GDPR.”

It remains to be seen how these potential employment changes will actually impact the population, with rollout details still remaining unclear.

Vanessa concluded on how attitudes towards the vaccine could force difficult decisions: “Today, over 3.8 million people in the UK are reported to have received the vaccine with no clarity as yet on whether people are declining to take the vaccine in any notable numbers so employers ought to monitor the success of the vaccine roll out for the time being.

“The current government policy is focused on persuasion rather than force so until the vaccine roll out progresses and the impact of any dissenters can be determined it would be unwise for employer’s to impose the vaccine.

“If the roll out fails due to poor take up then this could potentially be used as part of a risk assessment to support the mandatory vaccine requirement for employers in the end.”

According to the Government, there are two approved coronavirus vaccines in the UK, with both requiring two doses to provide longer-lasting protection.

The first groups of people set to receive the vaccine are those who are frontline care workers or living or working in a care home.

Beyond this, vaccines will be offered in a descending age schedule, with those aged over 80 receiving a dose first.

Full details on the rollout can be found on the Government’s website which is regularly being updated with the latest information.

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