Liam Entwistle: Employers should exercise caution on mandatory vaccinations

Liam Entwhistle

The introduction of mandatory Covid-19 vaccinations for employees could create a variety of legal problems for companies, warns Liam Entwistle.

Scotland’s Covid -19 vaccination roll-out continues to be in the spotlight and one area that’s attracting particular attention is the introduction of knee-jerk, ‘no jab, no job’ workplace policies.

Recently, a London services company revealed it was considering making it mandatory for new hires to have been vaccinated, and declared existing staff would face dismissal if they refused to be vaccinated.

This has raised questions around whether an employer can legally introduce this kind of rule.

Having a workplace vaccination policy isn’t necessarily wrong, if there is a genuine occupational requirement.

However, employers must follow a fair, reasonable and thought-out implementation procedure. Introducing an employment law policy as a knee-jerk reaction will almost certainly end in tears.

Any employment policy that’s introduced within an organisation has to be carefully thought out and assessed, bearing in mind the makeup, needs and rights of your workforce. Measures that force employees to be vaccinated could result in a raft of issues, and lead to discrimination claims.

While it’s important that employers safeguard the viability of their business and act on the basis of an economic need to get the work done by staff who are fit and able, and not posing a health risk to others, employers must also remember their legal obligations towards workers.

Introducing a blanket rule for all staff to be vaccinated would be tricky, as it could open employers up to discrimination claims. For example, a person may not wish to receive the vaccine due to a philosophical or religious belief system.

Meanwhile, there are those who may not be able to receive it due to a disability. And if you ask a potential employee to be vaccinated in order to get a job, but it’s not required for them to work, then you may not be able to say the step was reasonably justified in a discrimination claim.

As an employer, you should be able to show your workforce could not continue to work in the absence of a vaccine. That is why there is no ‘one size fits all’ vaccination policy, as processes will differ depending on the workplace.

The UK’s vaccination programme began in December 2020 and the roll-out will be ongoing for some time.

Until the vaccine is 100 per cent available, employers cannot reasonably expect potential employees to have received it.

A company may run into a fundamental breach of contract by requiring someone to have had a vaccine that they simply cannot get yet. It could even amount to age discrimination.

There are of course some individual cases where an employer can reasonably ask members of staff to have inoculations against certain diseases.

However, examples like this cannot be used as a reason to introduce a blanket vaccination policy in every workplace.

Asking staff to be vaccinated could be justified if it’s a genuine occupational requirement. For example, certain medical occupations may require employees to have a tetanus jab.

Therefore, a vaccination policy isn’t altogether wrong in itself. But if it’s not thought through and introduced with care and a knowledge of your workforce then you may run into discrimination, and possible breach of contract, issues.

It’s vital that employers keep up to date with changing regulations, in order to protect themselves from potentially expensive claims. Things are changing at a very fast pace, every day and the Government have introduced new, necessary legislation at a moment’s notice during the pandemic.

Therefore, it’s not outwith the realms of possibility that the government could introduce legislation requiring all new workers to prove they have been vaccinated. But as the law currently stands, that is not the case. My advice to employers before introducing any sort of policy would be to stop and think about your workforce. Don’t panic and move too quickly. Balance out what you think you need to do to keep your business running and the individual rights of the employee.

Make an assessment that you can later justify if you have to and seek legal advice at that point.

Liam Entwistle is chairman of Wright, Johnston & Mackenzie LLP