If you want your staff to have the vaccine before they return to work – can you force them? Can you stop them working if they refuse?
The simple answer is: no.
There is no law in the UK which requires mandatory vaccination, as much as some anti-vaxxers claim otherwise. The Public Health (Control of Disease) Act 1984 devolves powers to Parliament to legislate in order to protect UK citizens, but it cannot impose mandatory vaccinations.
This raises a whole host of issues from human rights to equality, and balances them against the rights of others to be safe in their workplace. In addition, it raises issues around the possible criminal implications of forcing someone to be vaccinated against their will.
Let’s take the last point first.
Possible criminal implications: The Offences Against the Persons Act 1861 s20 states that an unlawful wounding would occur if a person were forced to have a vaccination against their will. A wound means ‘a break of the skin’. This statute still remains in force today.
Now the other issues.
Human Rights and Equality: Compulsory medical treatment or testing is contrary to Article 8 of the European Convention on Human Rights, meaning that it’s a human right to refuse medical treatment if you wish to do so. Refusing medical treatment could be because of deeply held religious or other beliefs, and this brings into play the Equality Act 2010.
So, an employer cannot force an employee to be vaccinated.
But can an employer dismiss an employee for refusing the vaccine?
The short answer, again, is, no. If they did, it would amount to an unfair dismissal and the employee could justifiably take the employer to an employment tribunal for discrimination.
The situation would be the same if the claimant felt that they were being victimised, because of their belief, to such an extent that they felt that they could not continue being in the employ of the employer, and consequently, resigned. This would amount to constructive dismissal.
So how can an employer manage such a situation if there is a statutory duty to provide a safe environment for employees in the workplace?
The Health & Safety at Work Act 1974 places the responsibility on employers to protect the ‘health, safety and welfare’ at work of all employees and includes others on the premises such as temps, contractors and visitors.
This appears to be in contradiction to the premise that it is an individual’s right to refuse the vaccine. The only way to manage this is to impose certain guidelines on employees such as those we are all asked to follow during the current pandemic, for example, social distancing, mask wearing and sanitising/hand washing.
Of course, all this does depend on the job that an employee is employed to do. If the employee that is refusing to accept the vaccine is working in social care or in medical care with vulnerable patients, for example, this may well mean that refusal to be vaccinated may place those who have not yet been vaccinated (perhaps due to age, medical conditions, or access), as well as themselves, at risk.