Compulsory Testing and Vaccination FAQs

The introduction of the COVID-19 vaccine has raised questions regarding the implications of an employer insisting on compulsory testing and compulsory vaccination.

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Compulsory Testing and Vaccination FAQs

In this article, both issues will be discussed.

Can an employer insist on an employee taking a COVID-19 test?

In short, yes. If an employee is showing COVID-19 symptoms, an employer can ask them to take a COVID-19 test. This is due to an employer’s implied duty to take reasonable care of the health and safety of its employees and to take reasonable steps to provide a safe workplace and system of work.

If the employee refuses to take the test, possible disciplinary action will be dependent upon the reason for refusal. Other factors including the nature of the work, for example do they work with vulnerable people, will also be considered.

Employers should also remember an employee can be medically suspended on full pay. This may be considered as an option where an employ attends work despite being unfit to work and refuses a COVID-19 test.

What is the position regarding compulsory vaccination?

The position regarding compulsory vaccination differs from that of compulsory testing, primarily due to the highly sensitive nature of the issue meaning communication with employees is key.

What is the government’s position regarding mandatory vaccination?

The government has not legislated for the vaccine to be mandatory, therefore employers insisting on vaccination would be taking a huge risk, regardless of the nature of the workplace. ACAS guidance states employers should support staff in getting the vaccine but cannot make this compulsory.

Can an employee be dismissed for refusing the vaccine?

An employee can be dismissed if they refused the vaccine, but the employer is likely to be subject to a claim in the Employment Tribunal for these reasons:

  1. A hesitancy to take the vaccine is not in itself a protected characteristic under the Equality Act 2010. However if the refusal can be tied into another protected characteristic, such as disability, religion or philosophical belief, then a discrimination claim could be brought against the employer.
  2. An employee with over 2 years’ service may have a claim for unfair dismissal. Whist there is no caselaw on this new topic yet, the general consensus is an employee with over 2 years of service would have a good shot at a claim for unfair dismissal if they were dismissed for refusing to take the vaccine because:
  3. Generally an employer cannot compel employees to get the vaccine.
  4. Forcing an employee to take a vaccine is likely to breach article 8 of the Human Rights Act 1998 – the right to respect for private and family life.
  5. There are valid concerns over the side effects of the vaccine and the lack of testing that has gone into the vaccine.
  6. Fears over potential adverse effects of the vaccine.

What potential discrimination claims could be brought against an employer for dismissing an employee for failing to get the vaccine?

  1. Disability and Age Discrimination
    Some vaccines are not suitable for those with supressed immune systems or serious allergies and are not available to people of a younger age, meaning a requirement to have obtained the vaccine may give rise to a claim for disability or age discrimination.
  2. Religious or Philosophical Belief Discrimination
    Gelatine derived from pigs is often used in mass produced vaccines, which may be a concern for those of either Islamic or Buddhist faith. This may also be a concern for vegan or vegetarian employees, as veganism qualifies as a philosophical belief under the Equality Act 2010.
  3. Pregnancy discrimination

Current guidance states that pregnant woman should not receive the COVID-19 vaccination unless they are considered to be “high risk”.

In light of the above, any requirement for a vaccination would need to be presented with terms that allowed for exceptions.

Can a clause be inserted into an employment contract requiring an employee to receive the vaccine?

Introducing a contractual requirement insisting on COVID-19 testing or vaccination would amount to a change in terms and conditions. This would require consultation with the employee, and if over 20 employees were to be affected, collective consultation.

It is unlikely that many employees would agree to the change, either due to concerns about the safety of the new vaccine (whether well-founded or not) or due to an opposition to being compelled by their employer to undertake what is effectively a medical procedure.

If the employee does not agree to the change, the only options available to the employer would be to either impose the changes unilaterally or terminate the contract and offer re-engagement on the new terms. Both options carry risks, considering the controversial nature of the change and the potential human rights and discrimination issues.

What are the alternatives to mandatory vaccination?

An alternative to mandatory vaccination could be introducing a COVID-19 immunisation policy requiring that all employees who can be immunised, are immunised. However, the absence of a contractual requirement would make disciplining employees who do not get the vaccine more difficult.

In light of the risks associated with a mandatory vaccination programme, employers should consult with both employees and trade union representatives to try and achieve a voluntary take-up of the vaccine.

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