Two jab or not Two jab?

The recent lifting of Covid-19 restrictions marks the continuing return to a new normality as more people begin to venture outside, attend events and return to the workplace. This easing of restrictions has left many people asking the same question: can employers require employees to be vaccinated against Covid-19 and wear face coverings?

Vaccinations

The largest vaccination roll out in the country's history began on 8th December 2020 and according to NHS England 87.8% of the population aged 18 and over had received at least one dose of the Covid-19 vaccine as of 1st August 2021.[1]

Despite the success of the vaccine roll out, there are plenty of people who cannot, or do not want to receive the vaccine and with many employers wanting to return to 'business as usual', many people want to know whether employers can require employees to have the vaccine.

Generally, employers cannot require their employees to have the vaccine. Employers that do attempt to force their employees to have the vaccine risk their employees bringing a claim for discrimination and/or unfair dismissal.

The Equality Act 2010 provides protection for employees that suffer discrimination from their employer on the basis of a 'protected characteristic'. The three protected characteristics that appear the most relevant to an individual's refusal to have the vaccine are: Disability, Religion or Belief, and Pregnancy and Maternity. An employee may genuinely not be able to have the vaccine because of a medical condition or genuinely held religious beliefs. There is a danger that an employer requiring employees to be vaccinated could discriminate under one or more protected characteristics.

It may be possible for an employer's vaccination policy to constitute a reasonable management instruction; however this is likely to vary on a case by case basis and would likely be more successful in certain sectors. For example, in the healthcare sector it may be considered a reasonable management instruction to request an employee have the vaccine if they would be unable to socially distance. The likelihood of success of this approach remains uncertain and employers should be mindful of inadvertently discriminating against their employees.

The exceptions to the above are Care Quality Commission registered care homes whose workforce must, by law, unless exempt, be vaccinated against Covid-19.

Although employers are unable to require employees to have the vaccine, they are under a duty to ensure the health and safety of their workforce and can therefore encourage their employees to accept the vaccine. In doing this, employers should remain respectful of those employees who cannot, or do not want to be vaccinated.

Face Masks

In the UK there is no longer any legal requirement to wear a face mask in public. The recent lifting of restrictions means that the option to wear a face mask in most settings is left to the judgement of individuals. While the government recommend that individuals continue to wear face masks, there use is not mandatory.

Whether employees are required to wear face coverings at work is a matter for employers to decide based on their own risk assessments. Employers are required to protect their workforce and customers and are allowed to implement measures they believe are reasonably required to do so.

Although this decision is ultimately left for employers to make their own judgements, employers should remain mindful that some individuals are unable to wear face coverings and they should respect and support the needs of these individuals. It may be necessary for employers to make reasonable alternative adjustments to protect the health and safety of these employees.