December 8, 2020

V-Day – what are the employment implications?

Can employers force workers to vaccinate?

There is currently no legal basis in the UK to make vaccination for Covid-19 mandatory. In fact, the Public Health (Control of Disease) Act 1984 specifically precludes any government regulations from 'requiring a person to undergo medical treatment' which includes vaccinations. Employers who try and insist on vaccinations are therefore opening themselves up to potential legal claims. There are sectors and industries where vaccinations will be of vital importance, such as health and social care, and there could be additional considerations for employers in these sectors, although there is currently no requirement from the Government that they have the vaccine.

What can employers do if workers don’t want the vaccine?

Employers have an implied duty to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace.

Employers could try and enforce a contractual requirement for workers to get the vaccine, which would most likely amount to a change in the terms and conditions of employment. This could, however, lead to objections on the basis of concerns over the safety of the vaccine, as well as concerns over potential human rights violations. If workers did not agree to the proposed changes, employers could be faced with having to consider terminating employment contracts and offering re-engagement on different terms, with the associated risks that go with that such as unfair dismissal claims, disability discrimination claims and claims for failing to collectively consult.

Alternatively, and perhaps more proportionately, employers could attempt to engage with individuals who are reluctant to be vaccinated and consider implementing or maintaining parallel safety measures for the workplace such as social distancing, frequent testing and adjusted risk assessments.

What liability would an employer face if an employee refused the vaccine and then infected a colleague?

An employer can be held liable for a worker’s wrongdoing when it affects a third party in certain circumstances. The law around ‘vicarious’ liability is complex, but a key element would be the requirement for the infected colleague to prove that they contracted Covid-19 due to a breach of duty for which their employer is liable. In practice this could be difficult, considering the many potential sources of infection. However, it is a matter that employers must carefully consider and take steps to prevent transmission as far as reasonably possible.

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