Vaccination or Termination? Pick One.

2020 was not great. Indeed, the supposed apocalypse that was predicted in 2020 seemed — to an extent — to come to fruition. 

As we enter 2021, normality will begin to return, families and friends will be reunited, and people will leave their homes after months of misery in isolation.  The flowers are blooming, the birds are singing, and all is well… just kidding.

Vaccines… What’s the big deal?

Vaccines.  Synonyms include: contention, conflict, disagreement, dissension, controversy, and — depending on your point of view — trackablemicrochipscontrolledbybillgates.

The Covid-19 vaccine has become a subject of dispute amongst government officials and family members alike. I suppose people will disagree. But what about when people disagree with their employer?  Can your employer force you to take a vaccine?  Can you refuse it?  Can they terminate your contract if you do?

Questions.  Lots of questions.  Thankfully, this article will endeavour to answer them.

On a side note for all the anti-vaxxers, stop stressing about the vaccine!  I had mine today and I haven’t experienced any side effects… I feel Gates!  I mean… great.  *Ahem*

I’ll work on the puns. 

Employee Rights:

‘You can’t force me to take the vaccine, isn’t that against my human rights?!’  Well Karen, yes… but also no.

Employees have extensive rights in the workplace, which they may or may not be aware of.  These include the human rights contained in the European Convention on Human Rights (ECHR), which were made legally enforceable in the UK by the Human Rights Act 1998.  One such right is Article 8 of the ECHR, which states that every person has a right to respect for private and family life.  This includes respect for an individual’s body, thus compulsory medical treatment essentially violates Article 8, and is, on the face of it, illegal. Article 8 does contain a clause that states that a public authority may interfere with the exercise of this right in the interest of the protection of health, however the UK government have stated for months that they do not intend to make the Covid-19 vaccine mandatory.  

So, on the face of it, an employer cannot force an employee to take the vaccine.  In fact, many employees may have valid reasons to refuse the vaccine, for example vulnerability due to a medical condition, or a religious belief, and employers will need to respect this or risk claims of discrimination.  Indeed, Article 9 of the ECHR, the right to freedom of religion and belief, and the Equality Act 2010dictate that employers cannot discriminate against religious beliefs which may cause employees to refuse the vaccine.

So, we have explored some of the established rights and protections employees enjoy, but that does not necessarily mean that you can simply refuse the vaccine…

Employer Rights:

Employers have to respect the rights of their employees, and even incorporate many such rights into employment contracts and procedure.  However, employers have to consider the welfare of all employees, as well as clients and customers.  Moreover, some employers may have a stronger rationale for encouraging employees to book a vaccination, or to demand it.  Imagine you represent a care home.  Is it reasonable for them to implement a policy of mandatory staff vaccination?  After all, in the case of nurses and carers who constantly interact with vulnerable, elderly people, a vaccination could be the difference between life and death. As for the lawyer who can work from home, happily typing away whilst sat in their pyjamas, and drinking nothing but coffee?  Well… maybe not life and death.  ‘But playing around with cat filters on zoom is serious stuff!’ … We hear you, really.

There are a lot of factors for employers to consider.  Employers can attempt to alter employee contracts to contain mandatory vaccination, however this requires the consent of the employee.  That’s a bit like saying:  you must get a vaccination.  But only if you want to.  

Equally, employers may consider dismissing employees who refuse the Covid-19 vaccine, but often this is not a feasible option.  As aforementioned in the care home scenario, it is extremely justifiable for an employer to dismiss a carer or nurse, as a patient’s life might depend upon it.  In the office worker scenario, that dismissal is almost always unjustifiable, in particular where the potential for home-working — elicited by Covid-19 — is a plausible and reasonable alternative. And, as we have discussed, employees benefit from several statutory rights, which may reinforce an unfair dismissal claim.  Employers may also be placed in the difficult position where some employees refuse a vaccine, but others who are particularly vulnerable to Covid-19 refuse to attend work until other staff are vaccinated, or even, until the employer makes vaccination mandatory.  As Employment Lawyer Matt Gingell acknowledges, ‘Under health and safety law, employers have a general duty to ensure as far as reasonably practical the health, safety and welfare of all of their employees at work’.

Employers seem to get the short end of this particular legal (and often paradoxical) stick.  And, as per, the answer is never simple. 

My (non-professional, unsolicited) advice to employers?  Provide reliable information about vaccines to your employees.  Misinformation has become a virus in itself, and up to a third of the British people are reluctant to take a Covid-19 vaccine.  If employees are informed, they may take the vaccine of their own volition.  But, unless employee vaccination has such sufficient consequences that you can strongly justify dismissal, you shouldn’t try and force the vaccine upon anyone. The potential for an unfair dismissal claim, and the subsequent potential reputational damage are ultimately too significant to overlook.

Vaccination or Termination?

So… back to the questions.

Can your employer force you to take a vaccine?  Can you refuse it?  Can they terminate your contract if you do?

Maybe. Maybe. Maybe.

Unfortunately, this is not as simple as yes or no.  There is no definitive answer.  The answer changes on a situation by situation basis.  

Where an employer has the consent of its employees, or a duty of care to vulnerable individuals, they may be able to make vaccination mandatory, and dismiss those who do not abide. Where the employer has no such consent, or where the employee has a valid reason to refuse vaccination, the employer is powerless. 

It isn’t as simple as vaccination or termination.  It is more like vaccination, unless you refuse, in which case your employer cannot force you to take it, unless your role consists of caring for or protecting the vulnerable, which may be justifiable grounds for dismissal, unless you had a valid reason to refuse it such as vulnerability or religion, in which case you are protected by statute and, if you are discriminated against or dismissed, allows you to seek various remedies.    *Takes breath*

Welcome to Employment Law. Oh, the joys. 

This article was written by Toby Johnston.  Toby is a Content Writer for According To A Law Student and first-year Law LLB student at the University of Liverpool.  Toby has aspirations to become a corporate solicitor.