It’s a question that starts off quietly but we know is getting louder.
As with every challenge the world has faced over the past 12 months, employers are having to make important decisions under extreme pressure with very little, if any, assistance from existing precedents.
Until further guidance is provided from Those On High (assuming this ever happens), the legal status of requiring employees to have the COVID-19 vaccine is as follows:
There are no statutory provisions that could force individuals to become vaccinated. The Public Health (Control of Disease) Act 1984 specifically states people should not be required to undergo any mandatory medical treatment, including vaccinations.
If the government were to insist on compulsory vaccination, it could raise objections on the grounds of individual liberty and human rights. This is relates to article 8 of the European Convention on Human Rights, which protects people from being interfered with physically or psychologically and includes mandatory vaccinations.
There could also be criminal implications. Forcing anyone to receive a vaccine injection under duress, could constitute an unlawful injury. A vaccination requires an individual’s informed and voluntary consent.
Any differentiation in treatment between those who have or haven’t been vaccinated may amount to indirect discrimination. There are nine protected characteristics (we won’t list them – now is not the time) but these are the ones that will be considered:
Age: the vaccine roll out is currently based largely on age, at least initially
Disability – some employees may be advised not to have the vaccine due to a medical condition
Pregnancy – the vaccine is not recommended for those who are pregnant, breastfeeding or planning on becoming pregnant
Belief or Religion – an employee’s anti-vaccination position could amount to a philosophical belief under the Equality Act 2020. In addition, religious discrimination may occur as many vaccines use pig gelatine which could be a concern for several religious groups as well as vegans, all of whom are protected under the Equality Act.
And so the short answer – for now – is no. Employers can’t insist employees have the COVID-19 vaccination. But like everything else in today’s world, watch this space.