Can your boss force you to have a Covid vaccine? We asked an employment lawyer
Vaccine Deployment Minister Nadhim Zahawi has said that the Government will seek to persuade people to opt for a Covid-19 vaccine, rather than forcing anyone to do so.
Speaking to BBC Radio 4’s Today programme, Zahawi said: “I think, as the Prime Minister has said, we’re not the sort of country that forces people to take vaccines. We want to do this by persuasion.”
‘No jab, no job’
The comments from Zahawi come after Pimlico Plumbers founder Charlie Mullins told City A.M that he planned to roll out a “no jab, no job” policy.
He said: “No vaccine, no job… When we go off to Africa and Caribbean countries, we have to have a jab for malaria - we don’t think about it, we just do it. So why would we accept something within our country that’s going to kill us when we can have a vaccine to stop it?”
Mullins continued: “We’re going to change their contracts to say - whatever the wording might be - that you’re required to have a vaccine. It’s going to be standard.”
Additionally, anyone applying for a job at Pimlico Plumbers would have to show proof of vaccination.
After Mullins’ comments were reported on, a blog post on the Pimlico Plumbers website stated that “existing members of staff will not be forced to do anything they do not want to, although for safety reasons we would recommend and encourage them to be vaccinated”.
However, having the vaccine will be made a condition of employment for all people who are able to have the vaccine safely.
Can an employer force you to have the vaccine?
Philip Landau, lawyer at specialist employment law firm Landau Law, says: “This is a tricky situation for employers, whose instinct is to consider how best to keep all its employees and customers safe.
“Indeed, this is in line with their general duty of care. However, employers need to balance this against the requirement to act reasonably towards their staff after taking into account legal considerations, not to mention, respecting their wishes and civil liberties.”
‘Employers have no right to force existing employees to have the vaccine’
Landau explains that, as a matter of law, employers do not have a right to force existing employees to have a Covid-19 vaccine without their consent.
“Even the UK government doesn’t have this right, so it can’t be the case that employers could easily enforce or justify such a policy,” he says.
“If [an employer] tried to do so against the wishes of employees, which in turn, undermined their trust and confidence with that employer, then a claim can be made to the employment tribunal if an individual felt they had no option but to resign from their employment.
“This is known as constructive dismissal, and you would need two years minimum service to make such a claim.”
The employment specialist also explains that, if an employer went ahead with dismissing an employee for refusing to take the vaccine, then a claim for unfair dismissal could be made - but once again, a minimum of two years’ service would be required.
‘Separate claims for discrimination’
Landau continues: “There could also be a separate claim for discrimination if somebody was, for example, justified in refusing the vaccination on religious grounds (many vaccines have gelatine as part of their components, which is derived from pigs).
“Furthermore, if someone refused the jab because they were pregnant or had health issues, this could also give rise to a discrimination claim, and there is no qualifying period of service necessary to bring such a claim.”
Additionally, if an employer doesn’t compel employees to get the vaccine, but tells its employees that they cannot return to the office until they have had the jab, then, again, employers will still face the same risks previously outlined.
Landau says: “For new staff, it would be easier for employers to incorporate a condition into the contract terms that a vaccination has already been given, although the rules relating to discrimination would still apply - even at interview stage.”