Can Employers Compel Employees to be Vaccinated Against Covid-19?


9 April 2021

By Josh Fresle

As lockdown measures begin to ease and more and more employees begin returning to their workplace, many employers are considering whether they can introduce a requirement for their employees to be vaccinated.

The Government is currently undertaking its plan to roll out the largest vaccination programme in the country's history. According to NHS England 58.5% of people aged 16 and over in England have been administered at least one dose of the vaccine as of 4th April*. Despite this, vaccinations are not compulsory which may leave businesses wondering what they can do to protect their workforce and help reduce the spread of Covid-19.

What does the law say?

Legally, the Government has no power to compel any individual to accept a vaccine. In fact, requiring an individual to have any medical treatment (including a vaccine) is specifically prohibited by Section 45E Public Health (Control of Disease) Act 1984.

Contravention of these provisions could give rise to claims of violation of the European Convention on Human Rights.

What does this mean for businesses?

In essence, companies cannot force their employees to accept the vaccine. Doing so could lead to similar claims of breach of Human Rights. It is also worth remembering that an individual's beliefs or circumstances could likely form a protected characteristic, and disciplinary action/dismissal of that individual for refusing to take a vaccine could result in a claim of discrimination and/or unfair dismissal under the Equality Act 2010.

Protected Characteristics

The Equality Act 2010 lists nine protected characteristics which businesses must consider carefully in order to avoid discriminating against employees who may fall under one of these groups. There are three of these protected characteristics that would appear to be most relevant to an individual's refusal to accept a vaccine: Disability, Pregnancy and Maternity, and Religion or Belief.

If an individual suffers from a certain medical condition which prevents them from having the Covid-19 vaccine, they may be considered to have a disability for the purposes of the Equality Act and could bring a claim for discrimination should they be compelled to take the vaccine. The same could be applied to pregnant women who may not be able to be vaccinated in some cases.

Similarly, if an individual holds a genuine religious or philosophical belief that prevents them from accepting a vaccine, and they are forced to do so by their employer, claims of discrimination could arise.

Employer's obligations

Although employers cannot force their employees to accept the vaccine, it should be noted that they are required to take reasonable steps to ensure the health and safety of their employees and reduce risks in the workplace. Consequently, employers may be able to provide encouragement to their employees to consider taking the vaccine and could potentially take steps to help provide education on the vaccine. It may be possible to take alternative steps such as redeploying an employee to a varied role with reduced risk. These steps do still carry the risk for potential issues and should be considered carefully.

Insisting on or compelling an employee to accept a vaccine comes with a number of potential legal issues and risks for a business. Companies should give very careful consideration to any action taken in relation to an employee who does not want to take the vaccine and should consider seeking legal advice before doing so.

This is not legal advice; it is intended to provide information of general interest about current legal issues.