The Covid vaccine has arrived in the 海角视频 and with it a long list of questions.
One of the key ones being around the topic of mandated vaccinations, particularly at the insistence of employers.
David Sheppard, an employment lawyer from Capital Law, outlines the legal perspective.
The law
Currently there are no statutory provisions which would allow any 海角视频 government to force individuals to become vaccinated.
The Public Health (Control of Disease) Act 1984 actually provides for the opposite. Whilst it legislates to prevent, control and mitigate the spread of contamination or infections, it specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.
If any government of the 海角视频 were to legislate the right to insist on compulsory vaccination, it could feasibly give rise to numerous objections on the grounds of individual liberty and human rights.
Article 8 of the European Convention on Human Rights protects people from being interfered with physically or psychologically, which includes mandatory vaccinations.
Any legislation compelling vaccination would therefore likely be deemed incompatible with Article 8.
Can employers force you to vaccinate?
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In short, and in the vast majority of cases, no.
In theory, if there is a widely drafted medical examinations clause in their contract of employment, it could be relied upon. However, this would still be fraught with risk, and freely given consent is usually required for any medical intervention.
If employers were to compel their employees to be vaccinated, not only could it give rise to the human rights concerns highlighted above, but there could be criminal implications to these actions.
Forcing anybody to receive a vaccine injection under duress, under 海角视频 law, could constitute an unlawful injury to another. Therefore, for anybody to become vaccinated, the individuals’ informed consent, and voluntary participation, is essential.
Within an employment context, it may also be that someone’s anti-vaccination position could amount to a protected philosophical belief under the Equality Act 2010, worthy of legal protection. If a fervent anti-vaxxer could establish that their belief was genuinely held and worthy of respect in a democratic society, then they may find that the employment tribunal has sympathy for their beliefs.
Anti-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, including the common flu jab, use pig gelatine, which could cause problems for several religious groups, and also vegans; all of whom are protected under the Equality Act.
Can employers indirectly compel employees to vaccinate?
Employers may decide to take indirect measures to pressurise vaccination of their employees, such as refusing employees’ entry to certain parts of the workplace or undertake certain lesser roles if they cannot demonstrate that they’ve been vaccinated.
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Similarly, employers may be tempted to issue disciplinary action if an employee repeatedly refuses to be vaccinated. Any such measures should be considered very carefully before being implemented and in most cases such a policy of vaccination would struggle to be reasonable.
If an employee’s refusal to be vaccinated is intrinsic to their protected characteristic (e.g. a disability or a protected religious or philosophical belief), they may also be able to issue a direct or indirect discrimination claim, and claim constructive unfair dismissal if they resign in protest, if they are disadvantaged at work as a result of such a workplace policy.
A better course of action for employers would be to help employees to make informed decisions regarding their vaccination and signposting them to impartial factual information.
What if you work with vulnerable persons?
Under the Health and Safety at Work Act 1974, employers may have a duty to ensure a safe working environment by enabling vaccination of their employees in circumstances where they are engaged with and will have close contact with clinically vulnerable members of the public or other colleagues.
For example, it could be argued that a policy requiring a care home employee to have a vaccination, and disciplining them if they refuse, is reasonable due to the high-risk nature of their work and failure to vaccinate could create a serious and immediate health and safety risk to others, which ultimately justifies dismissal or disciplinary action.
However, it’s not quite that simple, and any employer requiring a vaccine would need to balance the proportionality of interfering with an employee’s human rights against the risk posed and the amount the risk is reduced by vaccination.
Essentially, does the vaccine reduce transmission or does it simply suppress symptoms in a carrier? It is this information that would inform an employment tribunal as to the reasonableness and proportionality of requiring vaccines in a high-risk workplace.
Given the high level of interference a vaccine policy has on Article 8 rights, a high standard of justification is needed for such action to be proportionate and therefore lawful.
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If the proven effect of the vaccine is to also suppress transmission over and above current social distancing measures, it could then be possible in theory to justify disciplining an employee where they refuse, or relocating them to lower risk roles, and other alternative options are not possible.