Can an employer insist upon an employee having a Covid-19 vaccination?

We are in the middle of a significant vaccine roll-out with millions of people in the United Kingdom already having had at least one if not both of their vaccinations. Vaccinations are not mandatory, so what is the position if an employee does not wish to have a vaccine, can an employer insist upon the employee being vaccinated? 

The short and simplified answer is “no, probably not at the moment…but!”

There have been suggestions in conjunction with “vaccine passports” that the Government could consider making vaccinations mandatory for care home workers, following a relatively low uptake in this sector. The same could be considered for frontline workers.

There is an argument that under the Health & Safety at Work Act 1974, employers could argue that in order to safeguard health and safety in the workplace and take reasonable care of its employees, that a putative employer could seek to make vaccinations mandatory in the workplace. That would however be a significant risk to an employer. For example, an employee may have a protected characteristic under the Equality Act 2010 which means that they can’t have the vaccine, and the putative employee could argue that he or she would suffer unlawful discrimination if they were told to have the vaccine, did not do so and then suffered a detriment of some kind. There is even an argument that an “anti-vax” belief could amount to a religious or philosophical belief and as such be a protected characteristic. The criteria in Grainger v Nicholson (2010) ICR 360 sets that a philosophical belief must be a.) genuinely held; b.) it must be a belief and not an opinion based or viewpoint based on the present state of information available; c.) it must be a belief as to a weighty and substantial aspect of human life and behaviour; d.) it must attain a certain level of cogency, seriousness, cohesion and importance, and e.) it must be worthy of respect in a democratic society and not be incompatible with human dignity and not in conflict with the fundamental rights of others. The arguments here are not straightforward, but there are some strong ‘anti-vax’ beliefs that are genuinely held. 

No doubt, in the months to come, we will see case law developing in this area. It is important to bear in mind that Employers and Employees alike can adhere to other good practices in the meantime, such as social distancing and using hand sanitiser. A collaborative and common-sense approach is a useful starting point. 

The contents of this article do not constitute legal advice and are provided for general information purposes only.