As the country’s vaccine programme surges ahead, it is inevitable that
there will be several speed bumps along the way, especially regarding the
opening up of the economy and the ensuing HR implications.
Recently, the owner of Pimlico Plumbers, Charlie Mullins, said he would not
hire anyone who had not received the vaccine and, also, that the
vaccination of his entire workforce was a ‘no-brainer’. In response to
this, Vaccines minister, Nadhim Zahawi, said it would be ‘discriminatory’
for employers not to hire anyone who had not been vaccinated and dismissing
an employee who refused to have the coronavirus vaccine could lead to an
unfair dismissal claim. However, government messaging on this topic has not
been entirely consistent, with justice secretary Robert Buckland saying
that it may be legal for companies to insist on new employees being
vaccinated as a condition of their employment. Given this is an issue that
is likely to persist throughout 2021 and beyond, what are the key
considerations for employers in respect of the coronavirus vaccination
Is asking staff to take the vaccine a reasonable instruction?
The government has already stated that it hopes to persuade people to get a vaccination and that vaccination
by coercion is not an option.
In some limited circumstances, there may be grounds for an employer to
issue a ‘reasonable instruction’ to take the vaccination to all its
employees and that would allow the employer to take disciplinary action
should they not comply.
Reasonable instruction is not a silver bullet, however, and this is a risky
strategy. Employers must be able to prove that unvaccinated employees are
not only a risk to themselves but also a substantial risk to others. It may
be reasonable, for example, for frontline health workers to be instructed
to get the vaccine as they pose a considerable risk to other people, but
even in these circumstances there will be significant risks if refusal to
have the coronavirus vaccination is related to a protected characteristic.
Moreover, in other industries where contact is limited, it will not be a
Introducing an immunisation clause into contracts for new starters and
being clear about any requirements in this regard during the recruitment
process would be a more reasonable approach to take but, even here, there
will be risks around refusals to have the vaccination on the grounds of a
Refusal to take the coronavirus vaccine
There are many legally valid reasons why people may refuse the jab. People
with severe allergies, pregnant women and those with certain philosophical
and religious beliefs may all have legitimate concerns about taking the
Some staff may also be generally anxious about vaccines in general and the
coronavirus vaccine in particular. Instances of what the World Health
Organisation refer to as ‘vaccine hesitancy’ are particularly prevalent in
Black or Black British Groups in the UK and must be treated respectfully.
Employers should discuss concerns and direct employees towards reliable
impartial information about the coronavirus vaccination before taking
action against employees who refuse to take the coronavirus vaccine. Advice
should be taken before taking disciplinary action against employees who
refuse to take the coronavirus vaccine because of the risk of
As mentioned earlier, certain philosophical beliefs may provide employees
who refuse the coronavirus vaccine with protection under the Equality Act
2010. However, this protection does not apply to many internet conspiracy
theories including the belief that the coronavirus vaccine will modify our
DNA; that Microsoft founder Bill Gates will use these vaccines to implant
trackable microchips into our systems; or that the vaccination programme is
part of a secret plan to control the population. Similarly, it does not
apply to the QAnon view that the vaccination programme is part of a plot by
the “deep state” to enslave humanity.
For something to be considered a protected philosophical belief, it must be
worthy of respect in a democratic society, must attain a level of cogency,
seriousness, cohesion and importance and have a similar status to a
religious belief. Most people agree that Anti-vaxx and QAnon ‘belief’
systems would not stand up to this level of scrutiny.
In order to support employers with the employment law challenges posed by
the coronavirus vaccination programme, a number of documents on this topic
will be added to the Employment folder. A
encouraging employees to have the coronavirus vaccine has just been added
and others will follow shortly.
The contents of this Newsletter are for reference purposes only and do not constitute
legal advice. Independent legal advice should be sought in relation to any specific