England: Q&A - Employer COVID-19 Vaccine Policies

Published on Feb 9, 2021

Can an employer require compulsory COVID-19 vaccination? If yes, are there any exceptions or special circumstances that an employer must consider?

There is no legislation or case law that deals directly with this, but despite press commentary, the only private sector employers who can lawfully require their staff to be vaccinated currently are those whose staff work in care-homes and other front-line health services. As vaccination levels increase, however, this may change as the reason behind insisting on vaccination moves from absence management to protecting public health and the vaccine becomes more readily available

Can employees refuse to be vaccinated? How does an employer need to balance its obligation to provide a safe work environment with an employee’s rights?

At the moment employees can refuse to be vaccinated and any consequent dismissal may contravene various employment protection rights. At current levels and efficacy of vaccination, it is probably impossible for an employer to insist on vaccination (other than for front-line health and care staff) as part of providing a safe environment. People are being vaccinated according to the priority set by central government. There are many other measures employers can take to provide a safe working environment. That may change as the vaccine becomes generally available in a few months’ time.

In the event of a refusal, can an employee be dismissed for refusal to comply with the employer’s vaccination policy? Will the employee’s refusal constitute just cause for termination?

The answers are respectively: not without risking contravening a number of employment protection rights; and, almost certainly not (with the exception of front-line health and care staff).

Jonathan Chamberlain, Gowling WLG