By Amanda Hamilton, CEO, National Association of Licensed Paralegals
Can you force your staff to have the vaccine before they return to work? Quite simply, no, not legally!
Despite the claims of some of the anti-vaxxers, there is no law in the UK which requires mandatory vaccination. The Public Health (Control of Disease) Act 1984 devolves powers to Parliament to legislate in order to protect UK Citizens. The law enables Parliament to intervene in an emergency situation, such as the pandemic, and impose lockdowns and restrictions to protect citizens, but it cannot impose mandatory vaccinations.
In other words, there is no power to make vaccinations mandatory. 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.
Potential 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.
Human Rights and Equality: Compulsory medical treatment or testing is contrary to Article 8 of the European Convention on Human Rights meaning that it is 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. This statute states an individual is protected from discrimination from nine possible characteristics including: age, disability, gender re-assignment, pregnancy and maternity, race, religion or belief and sex.
So, an employer cannot force an employee to be vaccinated. But can that employer dismiss an employee for refusing the vaccine?
Again, simply no. If they did, then it would amount to an unfair dismissal and the employee could justifiably take the employer to an employment tribunal for discrimination. The case would be brought under the Equality Act 2010 in that the claimant’s refusal to be vaccinated is founded on a fundamental belief or on religious grounds. It would of course, be for the claimant to prove that she/he has such beliefs.
And it would be exactly 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. The result being the same as if the employer had dismissed the employee – an employment tribunal case could ensue for unfair dismissal.
So how on earth 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, e.g. social distancing, mask wearing and sanitising/hand washing etc.
It may also be prudent to find alternative work for the employee until it is safe for them to return. A reasonable solution such as this should be acceptable to an employee. If not, and the employee brings an unfair dismissal case against the employer for constructive dismissal on the basis of discrimination, then a Tribunal, hearing such a case would weigh up the rights of the claimant to refuse the vaccine, with the nature of the work they do, the alternatives offered to them, and how many others would be put at risk, if they were to continue in their role without vaccination. In other words, they would look at the situation and apply a test of reasonability.
Lastly, can an employer insist that their staff tell them whether or not they have been vaccinated?
If you can demonstrate that asking them to be vaccinated is a reasonable management instruction, then asking them for this information will also be reasonable. However, just as you can’t force them to be vaccinated, you also can’t force them to reveal their vaccination status. Again, equality laws will come into play if there is a risk that revealing their vaccination status will result in discrimination within the workplace.
If they do agree to tell you then this will constitute sensitive personal health data and you’ll need to comply with GDPR. The same applies to information about who has not been vaccinated and why.
Generally, the best policy is one of unambiguous communication. Explain why you’d like staff to be vaccinated and why you’d like the information about their status. Give them an opportunity to discuss this privately with you or your HR department, and look at ways to mitigate the risks and offer alternative working options. This way you have done your best to provide the right working environment, have kept staff informed and engaged in the process and ultimately reduced the chances of a successful Tribunal claim.
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP), a non-profit Membership Body and the only Paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional.