Following a consultation conducted by the Department of Health and Social Care, the government has announced that vaccinations to protect against coronavirus (COVID-19) are to be made compulsory for anyone working in a CQC-registered care home in England providing nursing or personal care. Further consultation is taking place with regards to making vaccination mandatory for NHS workers too.

This announcement has sparked a debate as to the autonomy and personal freedom of workers and the duty of employers to ensure the safety of their staff.  The British Medical Association, which represents doctors and medical students in the UK, has warned that making vaccination for care workers mandatory would be “a blunt instrument that carries its own risks” but this does not detract from the responsibility employers have to ensure their staff’s health and safety.

This is not the first time that mandatory vaccination has been introduced in the healthcare sector though. Certain medical professionals are required to be vaccinated against Hepatitis B in order to carry out their roles.

It may be that similar procedures are put in place in respect of the coronavirus vaccination programme and workers who refuse to be vaccinated may need to be prepared to be redeployed or they could be dismissed from their employment.

While it is to become compulsory for healthcare workers to be vaccinated, mandatory vaccination is not expected to be introduced under law in other sectors. However, many employers are considering introducing a mandatory vaccination policy of their own.  Employers have a duty to ensure the health, safety and welfare (in so far as is reasonably practicable) of the people working for them, and this duty of care extends to those who physically interact with the business too.

Introducing any such policy should be done with great care, as employers need to be mindful that a blanket approach could indirectly discriminate against certain groups with one or more ‘protected characteristics’ (which include disability, religion or belief and age). Assessments will need to be carried out to determine whether a mandatory vaccination programme is a proportionate method of addressing the risk posed to staff and those who physically interact with them, or whether other less intrusive options are available. Reasons why mandatory vaccination may be considered a reasonable management instruction might include a difficulty to employ other safety measures (such as social distancing) or a particularly high level of risk to individuals interacting with the business (as is the case with healthcare).

Employers having a ‘one size fits all’ approach to coronavirus vaccination for their workers, which results in any worker being treated less favourably as a result of not being vaccinated, potentially puts the employer at risk of discrimination claims unless the organisation can justify the approach taken as being a proportionate means of achieving a legitimate aim.

Whether mandatory vaccination is proportionate will depend on factors such as:

• how the policy operates in practice;
• the impact on individual workers; and
• whether the risk to health and safety can be reduced in less intrusive ways.
  

If implementation of a mandatory coronavirus vaccination policy is not handled with care by an employer there is a real risk that employees could ‘vote with their feet’ when an employer seeks to enforce that policy, and when employees leave due to the actions of their employers, the employer could face claims for constructive dismissal and/or discrimination.

If you would like to know more about implementing a mandatory vaccination policy while protecting your business (as far as possible) from claims of discrimination or constructive dismissal, speak to one of our specialist employment solicitors today on 01782 262031 or fill out an online enquiry form here.