Where you stand legally if your employees refuse to get vaccinated - Jodie Hill

However, there are no laws stopping employers from encouraging and incentivising employees to be vaccinated, for health and safety reasons. Their argument is likely to be that it’s essential to ensure employees’ safety, especially if they travel or visit lots of other places as part of their job.

Some employers will make this a term in their contracts of employment or add a policy to their handbook that deals with the company’s position on vaccines. This is certainly something to be mindful of as employees may find themselves indirectly agreeing to have the vaccines through one of these documents if they do not read them carefully.

Where employers are considering bringing in new contractual terms regarding vaccines or policies, for new or existing staff this should be done with legal advice to avoid any risks.

Employers should consider that every case is different, and each employee must be dealt with on a case-by-case basis.

There’s a lot to consider. It’s not as simple as introducing a policy that mandates the vaccine for all staff to comply with.

So what happens if an employee refuses the vaccine?

Some employers may say that if an employee does not get vaccinated without good reason once the opportunity is offered, or if it is already a term in a contract for new starters, that their actions could be considered a failure to comply.

It could be seen as a refusal to carry out reasonable management instructions.

If this were the case, it could result in dismissal, but employers should seek legal advice. While there is nothing to stop employers going down this road, whether it is fair or not depends on the case.

There’s nothing to stop the dismissal taking effect, but it’s not without risks, particularly where the employee has more than two years’ service and/or can allege discrimination.

Subject to discrimination issues, an employee may be able to argue that a dismissal is unfair because:

Employers cannot compel employees to take vaccinations. They can only request it, unless agreed in their contract.

It could be contrary to the entitlement to private and family life under the Human Rights Act 1998.

Employers may have to evidence that they investigated all reasonable alternatives, including remote working and redeployment before dismissal.

Unfortunately, some workers may see their contracts terminated where they fail to comply with a “no jab, no job” policy, and they would be unable to claim unfair dismissal because of their employment status.

You have to be employed for more than two years to claim unfair dismissal, so those with less than two years’ service, people on casual contracts and the self-employed would be unable to claim. What if an employee refuses for legitimate reasons?

An employee may refuse the vaccine due to, being pregnant or looking to get pregnant, breastfeeding, religious reasons, ethical veganism, a disability or an allergy.

While having anti-vaccine beliefs is not a protected characteristic, it could potentially amount to a philosophical belief under the Equality Act 2010.

If an employer refuses to allow an employee to work or dismisses them because of their refusal, it could be discrimination, provided the worker can evidence a protected characteristic as the reason for the refusal.

Vaccination policies could be indirectly discriminatory unless they can be objectively justified. However, an employer may be able to argue that they had a legitimate reason for a vaccine requirement.

If requesting vaccines does become the norm, employers will have to consider each refusal on a case-by-case basis, considering what protected characteristics are at play and ensuring risk assessments for each person are conducted.