Can I dismiss an employee who refuses to be vaccinated?

With the vaccine roll out underway in the UK, it is hoped that its adult population will be vaccinated by September of this year.  This guide focusses on the issue of employees who refuse the vaccine and the options available to their employer.

Human Rights Law

A vaccination requires an individual’s informed and voluntary consent; any institution forcing vaccination is likely to fall foul of the European Convention on Human Rights and, potentially, criminal laws too, as such action could constitute an unlawful injury.

Contracts of Employment

As any medical intervention requires freely given consent by the individual, the insertion of a clause in a contract of employment mandating the employee to be vaccinated as a condition of employment would be unenforceable.  Similarly, existing contractual clauses requiring employees to co-operate with medical examinations will also not assist an employer wishing to impose the vaccine on staff.

Discrimination Law

It may also be that an individual’s anti-vaccination position could amount to a protected philosophical belief under the Equality Act 2010. If a fervent anti-vaxxer could establish that their belief was genuinely held and worthy of respect, then they may find success at an Employment Tribunal.

Religious discrimination arguments could also be made. There are several religious issues at stake when it comes to vaccinations, but the main one is the fact that many vaccines use pig gelatine, which could cause problems for several religious groups, as well as vegans – all of whom are protected under the Equality Act.  There is no suggestion, however, that the current vaccines being rolled out by the UK government contain pig gelatine.

Disciplinary Action

Disciplinary action must be considered very carefully before being instigated.

If an employee’s refusal to be vaccinated is down to a disability or other protected characteristic under the Equality Act, and results in disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim.  There may also be risk of a claim of constructive unfair dismissal if they resign in protest after such disciplinary action.  A more prudent approach for employers would be to help employees make informed decisions regarding their vaccination by sharing impartial, factual information.

In some circumstances, however, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they will have close contact with the clinically vulnerable. For example, it could be argued that requiring a care home employee to be vaccinated, and disciplining them if they refuse, is reasonable because of the high-risk nature of the work, ultimately justifying disciplinary action or even dismissal.

Where an employer is contemplating dismissal in response to an employee who refuses to have the vaccine, it is important to ensure such a decision withstands scrutiny.  An employer would be advised to consider all other reasonable options first, such as redeployment to lower-risk roles or requiring the employee to undertake social distancing measures where feasible.  It is likely that disciplinary action or dismissal will be proportionate only in more extreme circumstances, where no other reasonable steps to protect vulnerable persons are available. 

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