The COVID jab is definitely the way forward, and the way out of lockdown. But, it is starting to create a lot of tension in some sectors, particularly around the subject of employers enforcing the ‘jab’ on their employees. So, what is the legal situation?
Can employers force employees to get the jab?
In short, the answer is ‘no’. In the UK, medical treatment is not mandated, it is based on personal choice. We decide what happens to our bodies and we have the absolute right to refuse treatment, including the COVID vaccine.
In fact, if an employer were to ‘force’ an employee to take the jab, they would be committing a criminal offence.
However, it is not quite as straightforward as you might think!
What does health and safety law say?
Well, unfortunately, the law might hinder – but it might also help.
The starting point for every employer is a ‘risk assessment’. EVERY employer, regardless of the type of business, should have a ‘health risk assessment’, which considers the implications of the coronavirus on the individual and on the impact the infection might have on the business.
Each company will have a different outcome with their risk assessments. For example, a firm of office workers will almost certainly have a completely different risk assessment to a firm that sends employees into people’s homes. A construction company will have a different outcomes to a food processing plant.
The risk assessment is the starting point. The risk assessment should consider the potential of harm to employees and to the public and it should make a judgement on the control measures that might be needed to prevent harm. Control measures will differ from company to company.
UK health and safety law is not prescriptive; it does not mandate. For example, just because it is now humanly possible to vaccinate everyone, this does not mean that employers MUST vaccinate. The law is based on ‘risk and reward’ and it takes the potential to harm into account too. This is why risk assessment is so important, because it forms the basis of justification.
We can require employees to wear protective equipment, and we can require employees to attend training courses, but only if we can justify why PPE or the training is needed. This is the power of risk assessment, because it becomes our justification for the things we need employees to do.
Can a job offer be conditional on vaccination?
The answer here is ‘yes’, almost certainly. Last month, the Justice Secretary publicly backed this idea, stating that future contracts of employment could impose a requirement to have a vaccine. However, he stressed that any explicit requirement for new starts to have a vaccine MUST be justified. The justification comes in the form of a risk assessment.
So, any employer thinking about building the requirement for new starts to have a COVID vaccination into the job offer must think seriously about their justification, through the process of risk assessment.
But what about existing employees?
This is where the story gets a little more complicated. For an employer to mandate the vaccine, he would need to change the ‘contract of employment’ for each employee. This would involve consultation with the workforce and, again, justification through the process of risk assessment.
Any employee who is dismissed on the grounds of not being vaccinated could bring a tribunal case against the employer. Employees with more than two years service could raise an unfair dismissal claim. Remember, in the UK we do not mandate medical treatment, it is our choice whether or not to put this new substance into our bodies.
Employers need to adopt the following
All employers, regardless of sector or type of company, should adopt the following approach.
- Carry out a risk assessment and from the findings of that assessment, develop a COVID Protection Policy.
- The risk assessment and policy should identify the potential to cause harm and it should include reference to: PPE, hygiene measures, social-distancing, workplace bubbles, interaction with the public, transportation and working from home.
- Communicate the risk assessment and the policy to all employees and, where relevant, contractors and third party workers.
- Think about education of the workforce and how to communicate the benefits of taking the vaccine.
- Perhaps think about workplace champions; people who have the trust of the workforce, perhaps trade union or employee representatives, to help communicate the message to employees.
- Monitor Government guidance and update the risk assessment and policy regularly.
Keep your business safe and do not impinge human right
COVID will be with us for many months, and perhaps years to come. It is therefore important that employers have procedures and practices in place to help protect employees and also to help protect their business.
The last thing a company wants is to be in court defending a breach of human rights. By taking a proactive approach, through the process of risk assessment, education and training, employers can help protect their business and the people affected by their activities.