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Many people are worried about their employment rights regarding the Covid-19 vaccine. We reached out to Amanda Hamilton, Chief Executive of the non-profit National Association of Licensed Paralegals, to help explain your rights and potential issues around refusing the vaccine.
There is no law in UK which requires mandatory vaccination, as much as some anti-vaxxers claim otherwise. The Public Health (Control of Disease) Act 1984 devolves powers to Parliament to legislate in order to protect UK Citizens. The law enables Parliament to intervene in an emergency situation, such as the pandemic, and impose lockdowns and restrictions to protect citizens, but it cannot impose mandatory vaccinations. In other words, there is no power to make vaccinations mandatory.
This creates a plethora of issues, from human rights to equality, and balances them against the rights of others to be safe in their workplace. In addition, it raises issues around the possible criminal implications of forcing someone to be vaccinated against their will.
The Offences Against the Persons Act 1861 s20 states that an unlawful wounding would occur if a person were forced to have a vaccination against their will. A wound means ‘a break of the skin’. This statute still remains in force today.
Compulsory medical treatment or testing is contrary to Article 8 of the European Convention on Human Rights meaning that it is a human right to refuse medical treatment if you wish to do so. Refusing medical treatment could be because of deeply held religious or other beliefs, and this brings into play the Equality Act 2010. This statute states an individual is protected from discrimination from nine possible characteristics including: age, disability, gender re-assignment, pregnancy and maternity, race, religion or belief and sex.
So, an employer cannot force an employee to be vaccinated.
The short answer is no. If they were, then it would amount to an unfair dismissal and the employee could justifiably take the employer to an employment tribunal for discrimination. The case would be brought under the Equality Act 2010 in that the claimant’s refusal to be vaccinated is founded on a fundamental belief or on religious grounds. It would of course, be for the claimant to prove that she/he has such beliefs.
The situation would be the same if the claimant felt that they were being victimised, because of their belief, to such an extent that they felt that they could not continue being in the employ of the employer, and consequently, resigned. This would amount to constructive dismissal. The result being the same as if the employer had dismissed the employee – an employment tribunal case could ensue for unfair dismissal.
So how can an employer manage such a situation if there is a statutory duty to provide a safe environment for employees in the workplace? The Health & Safety at Work Act 1974 places the responsibility on employers to protect the ‘health, safety and welfare’ at work of all employees and includes others on the premises such as temps, contractors and visitors.
This appears to be in contradiction to the premise that it is an individual’s right to refuse the vaccine. The only way to manage this is to impose certain guidelines on employees such as those we are all asked to follow during the current pandemic, e.g. social distancing, mask wearing and sanitising/hand washing etc.
Of course, all this does depend on job that an employee is employed to do. For example, working in an office environment, following government guidelines may work reasonably well. However, if the employee that is refusing to accept the vaccine is working in social care or in medical care with vulnerable patients, then the standards may change. Being on the front line in such a situation may well mean that refusal to be vaccinated may place those who have not yet been vaccinated (perhaps due to age, medical conditions, or access), as well as themselves, at risk.
In these circumstances, it may be prudent to find alternative work for the employee until it is safe for them to return. A reasonable solution such as this should be acceptable to an employee.
If the employee doesn’t find it acceptable, they might bring an unfair dismissal case against the employer on the basis of discrimination. A Tribunal hearing such a case weighs up the rights of the employee to refuse the vaccine, taking into account the nature of their work, the alternatives offered, and how many others would be put at risk. In other words, they would look at the situation and apply a test of reasonability.
If the employer can demonstrate that asking staff to be vaccinated is a reasonable management instruction, then asking them for this information will also be reasonable. However, just as you can’t force them to be vaccinated, you also can’t force them to reveal their vaccination status.
Again, equality laws will come into play if there is a risk that revealing their vaccination status will result in discrimination within the workplace.
If they do agree to tell, then this will constitute sensitive personal health data and the organisation will need to comply with GDPR. The same applies to information about who has not been vaccinated and why.
The best policy is one of clear communication. Employers should explain why they’d like staff to be vaccinated and why they’d like the information about their status. An employer should give the opportunity to discuss this privately and look at ways to mitigate the risks and offer alternative working options. This way, as an employer, you have done your best to provide the right working environment, have kept staff informed and engaged in the process and ultimately reduced the chances of a successful Tribunal claim, should it unfortunately come to that.