Charlie Mullins of Pimlico Plumbers has publically said that he will rewrite all workers contracts to require them to have the vaccine. This might sound a good idea as employers try to battle the virus and get their businesses back to profitability but can you force staff to have the vaccine and what are your options?
A safe place for customers
As and when the sector can re-open, pub and restaurant operators will need to convince customers that their premises are safe and that they have taken all possible measures to make them Covid-secure spaces. One way of doing this might be to advertise that all your staff have been vaccinated against Covid-19.
A safe place for staff
As an employer you have a duty to provide a safe place for your employees to work. When carrying out a risk assessment you may well conclude that your outlet would be a safer place to work if all staff were vaccinated. Having said that, vaccination is unlikely to enable you to remove measures required to make the workplace Covid-secure (social distancing, screens etc.), particularly at this early stage of the vaccination programme.
Can you require staff to have the vaccine?
In short: no. The vaccination is not a legal requirement and you should be aware of potential issues should you try to make the vaccination mandatory for all staff.
Contractual requirement
Making the vaccine a contractual requirement would require employees to agree to the change and many may find this unpalatable. The alternative is to unilaterally impose the condition or to terminate employment and re-offer the role on revised terms – neither route is without its risks.
ACAS has taken the view that employers are not able to require employees to have the vaccine. If you deem it necessary for employees to be vaccinated because of their role (e.g. they undertake foreign travel) then you should have a workplace policy covering this. An employee whose reasons for refusing the vaccine are unreasonable may, in some situations, then be subject to disciplinary action.
Discrimination claims
You should listen to anyone who is refusing the vaccine as their reason may be reasonable e.g a medical condition such as an allergy. An employee’s reason for refusing the vaccine may also be a protected characteristic and afford them protection from discrimination e.g. if the employee:
- is pregnant or breastfeeding;
- has a religious belief – potentially relevant if animal-related ingredients go into the vaccine;
- has a disability;
- has a philosophical belief, such as ethical vegan reasons – potentially where vaccines are tested on animals.
Employers are likely to find it difficult to show that requiring employees to have the vaccine is a proportionate way of achieving a legitimate aim. This is because there are other measures such as testing that would achieve the same aim in a less discriminatory way.
Practical Approach
Rather than requiring all staff to have the vaccine, a more practical approach would be to introduce a policy on immunisation which would require all staff who can have the vaccine to have it. Voluntary vaccination will require sensitive communication with staff. You should also consider other measures for those who have not been vaccinated such as regular testing and working from home.
Further information
ACAS guidance for employers can be found here
For further advice please contact Christopher Sing
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