This issue of whether vaccination can be made a mandatory condition of employment engages a myriad of legal issues, none of which have a straightforward answer and the COVID-19 vaccine remains a huge area of uncertainty for employers. Such uncertainty has recently been highlighted by the Pimlico Plumbers chairman, Charlie Mullins, who stated that it was "a no-brainer" that workers should get the jab. Charlie Mullins’ comments will very likely result in employers across the country considering their position and future policies on COVID-19 vaccinations.

Can an employer ask employees to be vaccinated against COVID-19?

Employers can ask employees to do this on a voluntary basis. An instruction to take the vaccine could be regarded as a 'reasonable instruction' on the part of the employer, but it will depend on the circumstances. For example, employers in the social care sector may be able to issue a reasonable instruction to employees to take the vaccine because refusal could put vulnerable people at risk. However, there is a risk that some employees may still raise complaints or discrimination arguments at just being asked (for example, where it is against their religious beliefs), although the value of those claims if successful may well be small, if you have taken no other action. In the event that employers take steps against those who refuse the vaccine, there could be potential for stronger discrimination claims or constructive dismissal claims to be raised against the business in those circumstances. 

Can an employer insist that employees are vaccinated against COVID-19?

The UK Government has no legal power to compel the vaccinations at present. Similarly, employers do not have a statutory right to do so either. Whilst there is a theoretical argument that an employer might have a right to compel a vaccination at common law, there may be serious concerns about that being relied on due to Human Rights issues and the fact that a vaccine could only be lawfully administered provided that the individual consented to such treatment.

Employers may also look to impose a blanket requirement on their employees. If this approach were taken, then there is a risk of individuals bringing discrimination claims and challenging this, particularly on grounds of disability or religion for example.

Can an employer prioritise candidates who have been vaccinated for job roles?

In the absence of specific government guidance, this area remains unclear. On this basis, employers should be mindful of how they choose to operate and to mitigate the risk of individuals bringing discrimination claims and challenging this. It may be that in due course the Government will formally promote or require certain roles to be done by those who have received a vaccination, but we are not aware of that at present.

Practical considerations for employers

In absence of clear government guidance, it remains that employers should proceed with caution when it comes to COVID-19 vaccinations. For workplaces that remain open in England, employers must "carry out an appropriate Covid-19 risk assessment" to develop a "specific" strategy to stop the virus's spread. The appropriate guidance is the ‘Offices and contact centres’, but this does not mention anything regarding vaccines yet.

If you need advice or have any queries about dealing with any workplace issues arising from the COVID-19 outbreak, please contact Paul Chamberlain or another member of the employment team at JMW Solicitors LLP on 0345 241 5305.

This note is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice. 

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