Author: Paula Beck, HR Business Partner for PACT HR

Published: 8th December 2021

In November the Government also announced that subject to parliamentary approval all frontline health and social care workers in England will need to be fully vaccinated by next spring. The introduction of this has left education workers wondering whether they will be required to be fully vaccinated in order to continue in their roles.

This month PACT HR considers whether implementing policies requiring employees to be fully vaccinated is enforceable and how to avoid the legal pitfalls.

Can mandatory Covid-19 inoculation policies be justified?

Yes. For example, the situation for Care homes is simple as this is now a statutory requirement. It is law. There is also legal protection for employers if they should have to dismiss an employee for not having the vaccination – as long as they follow a fair process. A statutory restriction is one of the 5-fair reasons for dismissal as set out in the Employment Rights Act, which basically means that an employee is unable to continue working in their position without contravening a legal requirement. However, it is also important to note that mandatory care home vaccination policy is currently the subject of a legal challenge about the way the legislation was introduced; potentially creating claims of discrimination and infringing on human rights. So this is very much watch this space!

Will it be mandatory for staff working in Schools to be vaccinated?

It is unknown at this juncture whether the government will make it a statutory requirement for teachers.

Can I insist that staff notify me if they have had the vaccine?

No, unless you have a policy that requires employees to notify you that they have undergone certain procedures or have had a vaccine. You may however, want to ask employees if they would be able to notify you when they have had it to support with contingency planning purposes.

Can those working in education be forced to have the vaccine by their employers?

An employer cannot force an employee to have a vaccine. You may however, have read that many businesses are looking at introducing clauses in the contracts of employment or varying existing contracts of employment to require all employees to be vaccinated. There are a number of reasons as to why employers are considering doing this such as operational or financial. For example, preventing shut downs, protecting clinically vulnerable staff, customers, and to limit absenteeism for those required to either self-isolate or have time off work due to Covid-19 sickness absence. If an employer introduces measures requiring employees to be vaccinated and the employee refuses to do this, it could result in the employee being either redeployed or being dismissed.

Can an employer justify the introduction of compulsory Covid-19 vaccines?

All employers have a duty of care to their employees to ensure that they work in a safe environment. The Health and Safety at Work Act 1974 requires employers to take reasonable steps to reduce any work place risks. So introducing a vaccine policy on the grounds of health and safety could potentially be justified. 

Can an employee raise objections?

Yes, an employee may raise objections. Some of which may be valid depending on the particular circumstances and this is where potential claims for discrimination come in.

For example, “I can’t get vaccinated because I’m breastfeeding”, “I can’t get vaccinated due to religious reasons”, or “I cannot have the vaccine due to health reasons”. These relate to the individual rather than the whole organisation and if the employee suffers a detriment (i.e. is dismissed) then the likelihood is an employer could face either a direct or indirect discrimination claim.

If an employee raises an objection an employer would need to ensure that this is considered and addressed with objective evidence.

The best approach for employers initially is to encourage staff to be vaccinated and promote the benefits of this. Run awareness campaigns, using up to date data, sell the benefit and build trust.

PACT HR can provide policies, procedures, guidance, awareness sessions and advice on specific case work. Should you require any support please contact your PACT HR Business Partner.

For more info on how we can support your colleagues and teams, please contact the PACT HR helpdesk on 01274 436644 or email us at info@pact-hr.co.uk for more details.

Last Updated: 8th December 2021