D-BRIEF – Employment & Pensions Blog: Can an employer require its employees to be vaccinated against COVID-19?

The announcement this week that the NHS has begun the largest mass vaccination campaign in its history in relation to the approved COVID-19 vaccine is welcome news to many.

This of course includes employers who will be hopeful that in time they will be able to bring employees back to the workplace and reduce the COVID-secure measures which have been put in place, as well as reduce the amount of days lost due to sickness and self-isolation.

However, in order for the vaccine to be effective, and to assist the UK in getting back to some form of normality, there needs to be a high uptake of people choosing to have the vaccine. Employers are, of course, eager to have their employees vaccinated, and questions are therefore being asked in relation to the rights that employers may have to make vaccinations for employees a requirement.

The Government has announced that vaccines will be provided to the most vulnerable in society first, and has set out a list of nine high priority groups who will be offered vaccinations in the following order:

  • Residents in care homes for older adults and their carers
  • 80-year-olds and over and front line health and social care workers
  • 75-year-olds and over
  • 70-year-olds and over and clinically extremely vulnerable individuals
  • 65-year-olds and over
  • 16 to 64-year-olds with serious underlying health conditions
  • 60-year-olds and over
  • 55-year-olds and over
  • 50-year-olds and over

It will take considerable time before the vaccine is widely available to everyone. It is also understood that the vaccines will not be commercially available for some time.

What happens once the vaccine is widely available?

Under UK law, the government is not able to force members of the public to have any type of vaccination, and the Government has confirmed that COVID-19 vaccines will not be made compulsory either. Therefore although organisations will need to comply with their duty to ensure the health safety and welfare of their staff as far as possible, they will have to think carefully about making it a mandatory requirement that all staff take a vaccine when it becomes available to them. There could, for example, be discrimination risks if employees did not want to take a vaccine for health, age, religious or moral reasons. Pregnant women are also currently advised against getting vaccinated.

Employers would also have to think about how they would enforce any such new requirement.  Either they would need to vary contracts of employment to make it a contractual term, or label the requirement as a reasonable management instruction. In either case, an employee’s refusal to comply would then become a disciplinary matter. Any disciplinary hearing (and subsequent Tribunal hearing if an employee was dismissed and sued for unfair dismissal) would then assess the reasonableness of the requirement to get vaccinated and the reasonableness of the refusal.

This will need to be considered on a case by case basis and will depend on the risk that COVID-19 has on the specific nature of the organisation,  the particular roles that employees are carrying out, and the validity of the employee’s reasons for refusal. For example Anti-Vaxxers should not just be written off as cranks, regardless of the high profile and political comments about the Anti-Vax movement. With the backlog of Tribunal cases it will be a long time before we get the first legal ruling on whether it would be fair to dismiss someone for refusing to get vaccinated.

Unless and until medical evidence confirms that the COVID-19 vaccines prevent transmission of COVID-19 to others as well as protecting the individual who has been vaccinated against the worst of the illness, employers will need to continue to take steps to protect those who have not been vaccinated.

It is expected that the Government will provide guidance in due course in respect of an employer’s duties and obligations regarding the vaccine. However if it is important to an employer that as many employees get vaccinated as possible then it should start from a positive perspective, including the provision of relevant information. Once vaccines become commercially available, an employer may be able to arrange for it to be given to staff in the same way as any annual workplace flu vaccination programme.

For more information, please contact a member of our Employment, Human Resources & Pensions team.

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