COVID – 19: Can an employee be dismissed for refusing to take the vaccine?

With numbers rising across the Country, the roll out of the vaccine appears to now be paramount in reducing the spread of COVID-19.

 

Although the first to receive the vaccine are high risk healthcare workers and care home workers, it is expected that millions of other people in the UK will be eligible for a vaccine in the near future. However, will employees be expected to take the vaccine and if they refuse, can they be lawfully dismissed?

 

Human rights

 

In short, an employer cannot compel any employee to take a vaccine as The Public Health (Control of Disease) Act 1984 states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations. Compulsory vaccination measures implemented by any government could risk impeding with an individual’s human rights under Article 8 of the European Convention on Human Rights (which protects people from being interfered physically or psychologically and includes mandatory vaccinations).

 

Discrimination

 

Forcing an employee to take the vaccine may also put an employer at risk of “indirect discrimination” claims. Indirect discrimination happens when there is a policy that applies in the same way for everybody but disadvantages a group of people who share a protected characteristic, and you are disadvantaged as part of this group.

 

For example, individuals with certain protected characteristics (in particular, philosophical belief, religion, age, disability, sex and pregnancy) are at higher risk of being prejudiced. These are set out as follows:-

 

  1. Philosophical belief: The “anti-vax” movement belief could potentially be a protected characteristic and therefore, providing this belief doesn’t intervene with any individual fundamental rights, it is arguable that dismissing an employee for refusing to take the vaccine, could give rise to a discrimination claim.
  2. Religion: Many vaccines include pig gelatine which could cause problems for individuals who are vegans due to their religious belief.
  3. Age: Older workers are more likely to be called up for the vaccine first, given the priority list published by the Government. Therefore, an employee may be at higher risk of losing their job due to their refusal to take the vaccine.
  4. Disability: Some employees may not be able to take the vaccine due to their underlying medical condition. If they refuse to take it, an employer would need to determine why and factor that reasoning into their decision-making.
  5. Pregnancy or sex: The vaccine is not recommended for those who are pregnant, breastfeeding or planning to get pregnant. Therefore, dismissing an employee for not agreeing to take the vaccine, could give rise to potential discrimination claims.

 

Failure to follow reasonable instructions and dismissing employees for “some other substantial reason”.

 

Notwithstanding the above, a requirement to take the vaccine in the workplace could amount to a “reasonable instruction”. However, each individual circumstance is different and your legal representative can advise you what relevant factors can be taken into account in order to mandate this requirement as a policy.

 

For example, an individual who can work successfully from home may not be expected to comply with an employer’s alleged “reasonable instruction” to take the vaccine. In contrast, it is more likely a tribunal would hold that employees who work for a care home, may be fairly dismissed for not following a “reasonable instruction” to take the vaccine, as they work with vulnerable people and therefore their non-compliance, could potentially put people at risk.

 

Failure to follow a reasonable instruction can lead to a fair dismissal, most likely ‘dismissal for some other substantial reason’ (SOSR).

 

However, in any dismissal process, an employer needs to ensure they follow a fair process, listening to an employee’s views and determining whether alternative arrangements can be made.

 

Should you require any further advice in regards to the above, please contact a member of our employment team.

Zoe Michael – Zoe.michael@philipross.com

Georgina Kyriacou – Georgina.kyriacou@philipross.com

Max Lesser – Max.lesser@philipross.com

Zoe is a solicitor working in the litigation team. Her particular expertise includes a range of employment, commercial litigation and personal injury matters. She also has experience in dealing with property disputes.