Employers could in theory impose vaccination against COVID-19 as a condition of employment for new employees, although there are risks to this approach, such as possible claims for discrimination under equality legislation related to protected characteristics such as age, disability, sex, pregnancy and maternity, religion or (potentially) belief or, theoretically, a breach of trust and confidence which may entitle the employee to resign and claim constructive unfair dismissal.
Employers could seek to incorporate a vaccination obligation into existing employees’ contracts of employment however this is likely to be difficult as it would require employee consent.
Employers have no statutory right to require employees to be vaccinated but could argue that a requirement to be vaccinated is a “reasonable management instruction” and that failure to comply would be a disciplinary matter. Our view is that it would only be a reasonable management instruction to require vaccination where it is necessary to enable the employer to comply with its health and safety duties to the workforce following a COVID-19 workplace risk assessment. Such an instruction would likely not be reasonable where workforce safety could be ensured through other means, for example through remote working or other workplace measures.
It is notable that the National Health Service (“NHS”) does not currently mandate vaccinations for its health care workers and staff. In our view it will be difficult for private employers to successfully argue that it is necessary for their employees to be vaccinated on this basis, although there may be arguments for certain high risk sectors and this continues to be a developing area.
A survey of 750 executives in the UK (carried out by HRLocker in January 2021) shows that 23% of employers plan to mandate vaccination against COVID-19 for their staff, with 51% saying that they would encourage their employees to have the vaccine by providing information (40%), promoting the benefits of vaccination through internal communications (37%), subsidising the cost of vaccination (20%) and hosting walk-in clinics (15%). In relation to recruitment, 49% of executives stated that, when presented with equally suitable applicants, they would hire a vaccinated candidate over an unvaccinated one. This survey follows an earlier announcement that employers have begun to develop IT systems to track whether their workers have been inoculated against COVID-19.