Can an employer require employees to be vaccinated?

Novak Djokovic’s denial of entry contributes to the on-going debate about the rights and freedoms of the unvaccinated.

News of tennis star, Novak Djokovic’s recent denial of entry to Australia due to his vaccination status has been a prominent headline in the press since he was first detained by Immigration Border Control last week.

The situation has led to individuals voicing concern that the rights of those who are unvaccinated are being gradually limited or reduced as countries seek to impose greater measures on the public if they are unvaccinated. Whilst it is therefore a topic attracting international attention due to its effects on all aspects of public life, it is also something our employment team have been frequently discussing with our clients, both employers and employees alike.

Current vaccination position
At present, vaccination in England & Wales is not mandatory for the general public. However, the Government has recently announced their intention to introduce a requirement that all frontline health and social care workers in England are fully vaccinated against COVID-19, unless medically exempt, from 1 April 2022. This follows the introduction of a similar requirement for care home workers in late 2021.

This has inevitably led many across other industries to consider whether analogous measures may be introduced by the Government, and some employers are wanting to understand to what extent they can encourage vaccination and/or implement their own mandatory vaccination policies to ensure their staff and customers/clients are appropriately protected.

Can employers require mandatory vaccinations?
Presently, ACAS advises employers to encourage and support their employees without making vaccination a mandatory requirement – which could include offering paid time off to attend their vaccination appointments, for example. Throughout 2021, several large employers, such as Amazon, Asda, Sky and Three UK, made a public commitment to encouraging their staff to get vaccinated.

Whilst employers are therefore free to encourage staff to receive the vaccine, a mandatory vaccination requirement however for employees or job applicants is at great risk of exposing employers to liability under the Equality Act 2010 (the Act) due to its potentially discriminatory implications. If an employee is refusing or hesitant to receive a vaccination an employer is encouraged to understand the reasons why and if such reasons relate to a protected characteristic such as age, sex, sexual orientation, religion or belief, disability, race, marriage and civil partnership, pregnancy and maternity; and gender reassignment. A mandatory vaccination requirement imposed by employers may place these individuals at a particular disadvantage, which is generally prohibited under the Act.

Possible legal developments
There has also been a recent flurry of academic commentary on whether “anti-vax” beliefs could be regarded as a philosophical belief capable of protection from discrimination, harassment and victimization under the Act. Whilst there is some scope to argue it theoretically could be, it is unlikely based on current case law that a court or tribunal would determine they amount to a philosophical belief for the purposes of the Act.

Employers should therefore be mindful of the current Covid-19 rules and Government guidance about operating a safe working environment. If an employer is looking to amend the terms of existing contracts of employment or wishes to implement any practices or policies which could be interpreted as discriminatory, they are recommended to obtain legal advice before any further steps are taken.

For advice on this, or any other employment law related matter, please contact either Nick Smith or Laura Liddle, of the Mincoffs Employment Team.