With the escalated distribution of the vaccine, it seems we may finally be able to see the light at the end of the tunnel. Nevertheless, alongside this good news, there is now growing worry –what the consequences will be if people were to refuse to take the vaccine?
By a strict reading of the law, you cannot be forced to accept any medical treatment, including a vaccine, and the government has repeated this stance several times in recent weeks. However, several high-profile companies, especially within the hospitality industry, have already released statements confirming their plans that in order to attend any cinema, concert, or cruise, you will likely either be expected to show evidence that you have received the vaccination or in some cases a negative test result may be accepted if within the prescribed period (usually in the previous 48-72 hours). This raises some serious questions, both morally and legally.
Even where a service provider may accept a negative test result, the practical reality of this having to be repeated for every event you wish to attend would be difficult, to say the least.
But what about my job?
It is clear that different conversations will need to be had for different businesses and each employer will have to take the best and most effective decisions that are appropriate for them, for instance, those organisations operating in the health and social care sector will most certainly expect their staff to take up the vaccine at the earliest opportunity, arguing that to do otherwise would be not only irresponsible but also exposing vulnerable service users to unnecessary risk. This will in turn affect whether your employer may be able to reasonably request for you to take the vaccine and the approach they take in the face of any refusal.
This is because, in employment law, the primary question needing to be considered is whether your employer asking you to take the vaccine will be considered as a reasonable management instruction.
As considered above, therefore, if you are in the hospitality business or in otherwise a role where your job requires you to be in close contact with either other employees, clients or customers then it could be considered as a reasonable request to take the vaccine for your job and in turn, may justify action taken for any refusal. Such an expectation would only be intensified in the health and social care sector.
Are there any exceptions?
Depending on the circumstances, you may need to take extra steps to safeguard any potential discrimination issues which could arise. For instance, if an employee has a reasonable rationale behind their refusal then it may be that, even if the instruction is generally reasonable, it would be unreasonable for that specific individual.
By way of example, this could be:
- Due to pregnancy: pregnant women have been advised not to take the vaccine unless absolutely necessary due to complications it could give rise to.
- Due to a disability or other medical condition: it has been advised that some individuals suffering from specific allergies should not take the vaccine.
- Due to some religious or other belief: if the reasoning of the employee is considered to qualify within the definition of ‘belief’ under the Equality Act, employers will need to ensure all is done to discuss the issue with the employee and ultimately may have to accept refusal to avoid any claim of discrimination.
This is why the process of communication with the employee is so vital. It is therefore not so much a question of the messaging, but rather how that messaging is delivered.
Regardless of the situation, an employer must ensure they act fairly and reasonably both during their initial request for any vaccination and any further action they may choose to take against their staff if they choose to refuse it.
This is because even where your instruction is considered to be reasonable if you do not follow the correct course during any dismissal proceedings, it could be considered unfair.
If you require assistance on how best to approach your employees with regards to vaccines or you’re an employee worried about what this may mean for you, please get in touch to discuss how best we can support you during these uncertain times.
Duygu Karatay is a Trainee Solicitor working within the Employment Law Team. Contact Duygu Karatay on 01206 239754.
