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Employers needled by vaccine refusals, Part 1 – your rights and obligations (UK)

So a government-approved vaccination becomes available and you really want your employees to take it.  Can you just insist, or does the development of the vaccine turn out to have been the easy bit? Here and in further posts to follow shortly are some headline thoughts on the point. Please note that these will be very fact-sensitive questions and much will depend on the guidance which will no doubt be issued around the topic by the government.

  1. Will you be obliged to provide the vaccination where it is available?

Section 2 Health & Safety at Work Act 1974 requires the employer to take all reasonably practicable steps to reduce workplace risks to their lowest practicable level.  Given that an effective vaccine is being held out as the salvation of the civilised world, it will be hard for an employer to argue that provision of the vaccine (if available to it at a containable cost) would not fall within the measures required by that obligation.  Section 2 creates a criminal offence but the same principles will inevitably apply for the employer’s duties of care in contract and tort.  So basically, yes.  As a minimum, you would be obliged to encourage your employees in the most robust of terms to make their own arrangements to be vaccinated and to provide you with the evidence that they have done this.

  1. Having provided it, can you make your employees take it?

In physically practicable terms, obviously no.  That would be an assault or battery by the employer.  But can you insist as a matter of law, i.e. dismiss for a persistent refusal?

Under section 7 HSWA, an employee is under a duty to co-operate with his employer as necessary to enable any duty or requirement imposed on it under “relevant statutory provisions” (including the Act itself).  If the employer requires its staff to be vaccinated as a necessary measure under section 2 above, a refusal by the employee may therefore strictly amount to an offence. But the Prime Minister has made it clear that there will be no mandatory inoculation. “That is not the way we do things in this country” he said, although that is merely recognition of the political impossibility of doing anything else.  If the government does not require then the employer cannot require, merely facilitate and strongly encourage, and so the prospects of a successful prosecution of an employee around this are practically nil.

As a matter of contract and employment law, however, if taking the vaccine could be a reasonable management request (see below), then unreasonable refusal by the employee may constitute disobedience and hence justify disciplinary action.  Contractually it could also be argued that the employee is under an implied duty to act in the best interests of his employer, which must include his taking reasonable precautions not to infect customers or other employees.

If the vaccine is provided at work then the time taken in getting it (queueing, the injection itself, getting the cotton wool swab, etc.) will be working time for NMW purposes.

  1. Is an instruction to take the vaccine a reasonable management request?

Once it has been formally approved and officially recommended by government, probably yes.  It is not necessary that the vaccine is 100% effective or that there is zero chance of side effects – if those risk factors have not been sufficient to prevent government certification, then the vaccine is “officially” safe. If the employee can show that he works exclusively from home and simply will not come into contact with his colleagues, hence no risk to them from his refusal, then maybe not, but such circumstances are likely to be very rare.

Next post – it may well be reasonable to ask me but is that the end of the matter?

© Copyright 2021 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 332
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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