Many people are concerned about their employment rights regarding the Covid-19 vaccine. We contacted Amanda Hamilton, executive director of the nonprofit National Association of Licensed Paralegals, to clarify your rights and potential issues related to the vaccine refusal.
There is no law in the UK that makes vaccination compulsory, as some anti-Vaxxers claim otherwise. The Public Health (Disease Control) Act 1984 gives Parliament the power to legislate to protect UK citizens. The law allows parliament to intervene in an emergency like the pandemic and impose bans and restrictions to protect citizens, but it cannot impose compulsory vaccinations. In other words, there is no power to make vaccinations mandatory.
This creates a wide variety of issues, from human rights to equality, and offsets them against the right of others to be safe in their jobs. It also raises questions about the possible criminal consequences of forcing someone to be vaccinated against their will.
- Possible criminal implications
- Human rights and equality
- Can an employee be fired for rejecting the vaccine?
- A safe environment for others
- A sensible solution
- Does an employee have to tell his employer?
- Further legal articles
Possible criminal implications
The Act Against the Persons of 1861 s20 states that an unlawful wounding would result if a person were forced to be vaccinated against their will. A wound means “broken skin”. This law is still in force today.
Human rights and equality
Compulsory medical treatment or examination is in violation of Article 8 of the European Convention on Human Rights, which means that it is a human right to refuse medical treatment if you so choose. Denial of medical treatment may be due to deeply rooted religious or other beliefs, and this is what brings the 2010 Equal Opportunities Act into play. This law states that a person is protected from discrimination based on nine possible characteristics, including: age, disability, sex reassignment, pregnancy and motherhood, race, religion or belief, and gender.
An employer cannot force an employee to vaccinate.
Can an employee be fired for rejecting the vaccine?
The short answer is no. If so, it would mean an unjustified dismissal and the worker could rightly bring the employer to a labor court for discrimination. The case would fall under the Equality Act 2010 as the applicant’s refusal to be vaccinated was based on a fundamental belief or on religious grounds. It would of course be up to the applicant to prove that he / she has such beliefs.
The situation would be the same if the applicant felt that his belief was being victimized to such an extent that he felt that he could no longer be employed by the employer and consequently resigned. This would amount to a constructive dismissal. The result is the same as if the employer had fired the employee – a labor court could arise for unjustified dismissal.
A safe environment for others
How can an employer deal with such a situation when there is a legal obligation to provide a safe environment for employees in the workplace? The Health and Safety at Work Act 1974 gives employers the responsibility to protect the “health, safety and welfare” of all workers at work, and includes others on the premises such as temporary workers, contractors and visitors.
This seems to contradict the assumption that it is an individual’s right to refuse the vaccine. The only way to achieve this is to impose certain guidelines on employees, such as: B. those we all must obey during the current pandemic, e.g. B. social distancing, wearing masks and disinfecting / hand washing etc.
All of this, of course, depends on the work that an employee is engaged in. For example, if you work in an office environment and follow government guidelines, this might work quite well. If the employee who refuses to accept the vaccine works in social welfare or medical care with vulnerable patients, standards can change. Being on the forefront of such a situation can well mean that refusal to vaccinate could put those who have not yet been vaccinated (possibly due to age, illness, or access) and yourself at risk.
A sensible solution
In these circumstances it may be advisable to find alternative work for the employee until it is safe for them to return. A sensible solution like this should be acceptable to an employee.
If the employee does not consider this to be acceptable, he can bring an unjustified dismissal action against the employer on the basis of discrimination. A tribunal hearing such a case will assess the worker’s right to refuse the vaccine, taking into account the nature of his job, the alternatives offered, and the number of other people at risk. In other words, they would look at the situation and apply a test of reasonableness.
Does an employee have to tell an employer?
If the employer can demonstrate that it is appropriate management instruction to ask employees to be vaccinated, it makes sense to ask them for this information too. Just as you cannot force them to be vaccinated, you cannot force them to reveal their vaccination status.
Again, equality laws will come into play if there is a risk that disclosure of their vaccination status will lead to workplace discrimination.
If you agree, this constitutes sensitive personal health information and the organization must comply with the GDPR. The same applies to information about who was not vaccinated and why.
The best policy is clear communication. Employers should explain why they would like employees to be vaccinated and why they would like information about their status. An employer should provide the opportunity to discuss this in private and look for ways to mitigate the risks and offer alternative work options. In this way, as an employer, you have done your best to create the right work environment, keep employees informed and ultimately reduce the chances of a successful lawsuit before the tribunal should this unfortunately happen.