|In due course some employers are likely to face situations where they feel they need to ask all or some of their employees to have the coronavirus vaccine. For a variety of reasons, including concerns in relation to potential side effects, testing and/or adverse reactions, some employees may refuse to do so. Due to the potential risk to clients, customers, service users and other employees, these employers will need to consider what options are available to them and whether they feel they have no choice but to dismiss an employee who refuses to have the vaccine.
There is no existing case law in relation to this and it will take a number of months and probably in excess of a year to start to see cases coming through the employment tribunal system. However, we can use existing case law in relation to other similar matters and the provisions of the Employment Rights Act 1996 to determine how a tribunal is likely to view this.
Employees with greater than one year and 51 weeks’ continuous service with an employer have the right not to be unfairly dismissed. Employees can only be dismissed for a limited number of fair reasons. In most cases, it is likely to be unfair to dismiss an employee for refusing to have the coronavirus vaccine. It is not possible to compel an employee to have the vaccine due to the right an individual has to a private life under the Human Rights Act 1998 and the European Convention on Human Rights. However, some employers such as care sector employers and the NHS may be able to justify the dismissal of employees in front-line roles who refuse to be vaccinated where there is a high risk of the virus being passed on to vulnerable people.
In the circumstances referred to above, an employer will still need to go through a fair procedure when considering the dismissal of an employee under these circumstances. Alternative options should be explored, including the option of redeploying an employee into another role. If no alternatives can be found and the employee has followed a fair procedure such that they can dismiss the employee fairly, the employee will still be entitled to notice pay in accordance with their contract of employment/statute.
Employers will also need to be aware of any refusal of the vaccine by an employee on the grounds that they are suffering from a disability or related to any other protected characteristic under the Equality Act 2010.
Given the risks associated with a dismissal on this basis, employers are advised to seek legal advice before taking any steps to dismiss an employee.
Please let us know if you have any further questions.
Tom is head of employment at DTM Legal. He advises commercial clients and senior executives on bringing and defending employment tribunal claims, including assessment of merits, tactical decision making, negotiation of settlement and employment tribunal representation.
Elizabeth is a Senior Associate in the employment department. She advises employers and senior executives on a wide range of employment matters including: equality and diversity; redundancy and reorganisation; disciplinaries; grievances; sickness absence and capability; performance management; whistleblowing; TUPE transfers; post-termination restrictions; settlement agreements; contracts of employment and employee handbooks; consultancy agreements; directors service agreements; and, employment tribunal claims.