As the rollout of the vaccination continues – and starts to include more of the general working population – a key question is being asked by employers around the country.
Can I force my staff to get the jab?
The short answer is no. Any medical intervention generally requires the consent of the individual and if your employee doesn’t want to have the jab that is their choice.
But the real-world situation is a lot more nuanced than that. Your staff may feel strongly that they do not want to work with anyone who has not been vaccinated and feel that you are putting them at risk if you don’t insist that everyone has the jab.
The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks. This gives you ample scope to encourage all your staff to have the jab and make it as simple as possible for them to do so.
Of course, there will be a minority who say they don’t want the vaccine, citing such reasons as medical grounds, religious or philosophical beliefs, fear of needles or concerns about the speed with which the vaccine was rolled out.
Here you will need to treat each case on its merits. But sitting down with the member of staff to understand their concerns – and making sure they have access to the latest impartial, factual information - is a good first step.
It’s a good idea to have a company vaccination policy, which you can refer to in these discussions. This should spell out your approach to the vaccine and explain why you think it important for all staff to have the jab. It should also emphasise that it is a voluntary choice and explain how employees can contribute to wider public health by being vaccinated.
It’s also worth making sure line managers are fully briefed on your policy, since these are likely to be the first people that staff will turn to for advice over the issue.
If an employee is adamant they will not have the jab, you should look to put in place other solutions if possible.
This might be continued working from home, social distancing within the workplace, screens, the use of PPE and so on. You may even consider changing their role if that would result in them being able to work remotely or in a safer environment.
You may also consider it unsafe to allow the member of staff back into the workplace if they refuse to be vaccinated. But be careful. This line of action carries clear legal risks – especially in cases where staff have served two years or more with you - and could lead to you being bogged down in claims and constructive dismissal action.
Depending on what sector you work in – health care for example – you may be able to build a case for defending your stance, but it will be time consuming and costly at a time when your energies are likely to be better spent elsewhere.
And what of new employees? Can you put a clause in their contract insisting they have the jab before joining you?
Justice Secretary Robert Buckland has indicated it may be legal for companies to insist on new staff being vaccinated as a condition of their employment but that bosses would not be able to make existing workers have vaccines under their current contracts.
For new hires, each contract would have to be designed with the particular job in mind and might still be open to challenge on the basis that it is unfair or discriminatory.
It’s a hugely complicated area and one untested in Employment Tribunals or the nation’s law courts. As such, working with your staff wherever possible to find a consensus and shared approach is likely to be more powerful than bulldozing through policies which are both unpopular and untested.
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