To jab, or not to jab… do employers get a say?

“Are you having the jab?” “I am, definitely, are you?” “I’m not sure…”.

I’ve had a lot of conversations about the Covid-19 vaccination. It’s a tricky topic, which, if we were allowed to meet friends for dinner would probably rapidly end up on the banned list, along with politics and religion (banned at least until sufficient drink has been taken). I’ve certainly been surprised by some of the opinions, and the strength of emotion behind them. But what is the legal position if you are an employer? Can you force your staff to have the jab?

The starting position is that the Government does not have the power to compel individuals to be inoculated against Covid-19, and if that’s the case, how can an employer? Health and Safety legislation requires employers to take all reasonable steps to reduce workplace risks, but that doesn’t go so far as requiring them to make arrangements for staff to be vaccinated.

The next stop, then, is whether ‘you must have the jab’ is a reasonable management instruction, and that is going to depend very heavily on the circumstances, including whether or not the jab is effective in preventing Covid-19 (let’s hope so!) and the impact of your choice on others in a workplace setting. If you are a frontline health worker, then it probably is reasonable to expect you to have the jab, if you work in a role that is largely home based and your contact with others is minimal, perhaps less so.

Let’s say the instruction is reasonable, what are the consequences for the employee if they refuse? That, again, depends – this time on the reason for the refusal. If it’s health related (severe allergies, for example) then refusal may be reasonable if the jab risks damage to health (and the employee may be protected under the disability provisions of the Equality Act if the allergies are sufficiently serious). If it’s ‘on principle’ that will depend on the principle – for example, ethical veganism has been held to be protectable as a philosophical belief under the Equality Act, so if someone who has strong philosophical beliefs based on veganism refuses the jab because of the inclusion of animal products or testing in the development process, they may be protected against dismissal for failure to follow an instruction to have the jab, even if on the face of it that instruction is reasonable.

Employers will also need to think about alternatives to dismissal before taking that draconian step – rather than dismissing, is it possible to limit the employee’s contact with others or can they work from home?

There is also a data privacy angle to consider, as data about health is a special category under data privacy legislation and as such it requires a lawful basis for processing that goes above and beyond ‘normal’ personal data.

Finally, what about ‘Anti-Vaxxers’? Whilst I make no personal comment, the general legal position is that beliefs are only protectable if they are ‘objectively worthy of respect in a democratic society’ and so if a belief is based on conspiracy theory, it’s unlikely to meet this legal test.

I recently discussed some of these issues with BBC correspondent Karl Mercer when BBC London News were running a story about vaccine hesitancy in care home workers. You can watch the clip here.