As the UK sees a successful vaccine rollout, we’re beginning to hear about proposals from some employers to introduce policies requiring, on the one hand, existing employees and, on the other hand, new employees, to have a Covid-19 vaccination.
The question we address is about the legality of policies such as this.
In order to introduce a policy of this nature, whether for new or existing employees, an employer will need to carefully and examine the reasons for introducing such a policy. There has certainly been some discussion in the social care sector where it’s been suggested that employers should insist on employees having a Covid-19 vaccination before being able to work with, say, elderly people in a care home setting.
However, if such a policy were to be introduced, careful consideration would have to be given to the employees existing terms and conditions of employment. Employers would need to consult with their workforce. There are also issues about discrimination, underlying health issues and issues about philosophical or religious beliefs. It is unlikely that this could be introduced unilaterally by employers for existing employees and, if it is, it could be open to challenge at an employment tribunal.
The situation with new employees is different. The reason for that is that any potential employee does not yet have a contract of employment. If an employer conducts a study of working practices and determines that it will be necessary for new employees to have had a Covid-19 vaccination, then that requirement can be added into the prospective employee’s new contract of employment. However, this is fraught with difficulty because if the new employee is employed in the same position or to carry out the same duties as an existing employee who does not have the “vaccination clause” in their contract, then there might be a claim for discrimination.
In addition, should someone be refused employment on the basis they had not been vaccinated, the employer might face a claim of discriminatory behaviour which could be challenged at an employment tribunal.
This is an area where there are no hard and fast rules. Any new policy introduced will have to be tested and we await, with interest, any reported cases.
If you would like any help or advice in relation to an employment matter, please contact us.
