Vaccination: Implications for Employment Law
No area of law has changed more since the start of the Covid-19 pandemic than Employment law. One upcoming area of interest will be the Covid-19 vaccine and employee’s rights with regards their own health decisions. It is important to remember that we have no precedence at the moment and therefore no concrete answers on these issues
An employer cannot force an employee to receive a vaccination. A vaccination is medical treatment and employees have individual bodily autonomy to determine for themselves what medical treatment they might receive or refrain from receiving. An employer could, however, make receiving medical treatments and undergoing medical procedures terms or conditions of an employment contract. This can most commonly be seen in the world of elite professional sports. A breach of this term would rarely permit specific performance to force a vaccination on an employee, however, the breach could be treated as misconduct, for which disciplinary action could follow. Outside of elite sport, it is very unlikely that contracts of employment would deal with issues of an employee’s medical treatment, particularly if drafted prior to the start of this pandemic.
If vaccinations/medical treatment, as is likely the case, are not dealt with in the contract of employment, the employer could look to mutually agree a variation to the employee’s contract to include such an obligation. The issue in dispute then would be whether it is a reasonable change (for the employee to accept) in the terms and conditions of employment. Although a minor change, I do believe that this may not be an easy change for the employer to force upon their employees, and should the employee refuse, any resulting dismissal would likely be unfair.
The most likely sectors where employees are likely to be expected to receive a vaccination are where they are in direct contact with medically vulnerable people, most typically in the NHS or care industry.
There is very likely a contractual requirement on these employees to safeguard patients and to protect them from harm. This may not be expressly stated in their contract of employment but could be an implied term by industry wide custom and practice. It may also be referred to in disciplinary policies and procedures. There is a possibility that such an employer could argue that deliberate refusal to receive the vaccination during a pandemic constitutes a breach of this obligation and could potentially result in misconduct by the employee. As above, if the employee can show that this decision is unreasonable then there may be a claim against any resulting disciplinary sanction.
As employers would likely place the same requirements or expectations on all employees, regardless of any protected characteristics, any discrimination claims would likely be for indirect discrimination, under section 19 of the Equality Act 2010.
If a blanket rule (such as requesting that employees be vaccinated) were to disproportionately impact employees who have a particular protected characteristic, the employer may be able to defend their position if it can be shown that the rule regarding vaccination is a proportionate means of achieving a legitimate aim. This defence is unlikely to succeed where an employee is unable to have the vaccination due to a disability, in which case, the employer would be expected to make a reasonable adjustment.