People challenges as a result of Coronavirus vaccine - Part 1

James Richardson | 17 February 2021

In part 1 of a series of HR articles exploring the people challenges that may arise as a result of the vaccine, our HR team consider whether employers can insist on their employees having the coronavirus vaccine and the implications of doing so.  

Part 1: Can I make employees have the COVID-19 vaccination?

It has been a challenging year to say the least. With the numbers of vaccinated persons growing each day, we are all becoming increasingly optimistic about COVID-19 restrictions being relaxed somewhat by the summer and employers cannot be blamed for doing the same. The thought of a beer garden with your loved ones is a powerful image at present and many businesses will be gearing up for what they hope to be a lucrative second half of 2021. However, it is important to proceed cautiously and for employers to give careful consideration to the people challenges they may face in any transition back to ‘normality’. We have therefore highlighted a few of the potential difficulties that we would encourage employers to consider, alongside our advice and guidance in dealing with each area of concern.

There have already been examples of employers in the media outlining a firm stance on this matter. As a result, you may understandably be considering whether this is a potential option for your business too.

This is a tricky situation as having a fully vaccinated workforce is an attractive situation for many employers to be in. However, enforcing such a rule in the workplace is likely to be considered a risky option because receiving the vaccine is a voluntary medical procedure and the government have not taken the stance to make this mandatory. For some types of employment, such as within the care sector, employers may have a much stronger argument for making the vaccination mandatory.

It is necessary to consider the risk of employment tribunal claims which may come from attempting to enforce a rule along these lines. There are several areas for employers to be conscious of:

• Age Discrimination. Younger staff will be unable to obtain a vaccination until much later and could therefore be placed at a detriment compared to their older colleagues by having less opportunity to earn a living.
• Disability Discrimination. If medical factors or health conditions are ignored this may give rise to a claim as some health conditions may mean that side effects of the vaccine outweigh its benefits.
• Religious & Philosophical Belief Discrimination. Certain beliefs, morals or practices may not permit for the vaccine to be taken. For example, some religions do not permit immunisation, or those who identify as vegan may decide against the vaccine due to animal testing or the animal by-products used in its production. A growing concern also comes from whether the argument can be made for the anti-vaxxer movement to be considered a philosophical belief.
• Breach of Contract/Unfair Dismissal/Constructive Dismissal. A policy of vaccine enforcement is likely to be seen as a fundamental change to employees’ terms & conditions of employment. As a result, the risk of this claim being made against you increase as the rule is unlikely to be accepted without being challenged by staff.
• Personal Injury. Short or long term side effects caused by the vaccination could result in future personal injury claims against the organisation.

Taking the above into account, you can see that the answer is not a simple one – the idea of “no jab, no job” is not likely to go down well in a tribunal setting unless there is a clearly objective reason employers could rely on. A case by case approach will be required and therefore, an all-encompassing policy requiring staff to be vaccinated is likely to be difficult to safely enforce in practice.

Further support

If you are currently experiencing any challenges, or have some questions, and would like to discuss your organisation in more detail then please do not hesitate to talk to us for further support and guidance.

To discuss how we can help you and your business in more detail, please speak to a member of our HR team directly, via the contact details below.

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