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Lawyer sets out legal position over being sacked for refusing vaccine

As the covid-19 vaccine rollout ramps up across the UK, many questions have arisen about whether employers will make it compulsory for their employees to have it.

The situation has caused concern amongst workers who fear that they will face discrimination and ultimately may lose their jobs if they choose not to be vaccinated.

But where does the law stand and can employers legally enforce new coronavirus vaccine rules on their workforce?

Larna Mason, associate at DAS Law, has answered a number of questions on what the legal position is.

Is it legal for my employer to insist that I have the covid-19 vaccine in order to continuing working for the company?

An employer cannot physically force a vaccine into the arm of an employee but could present an employee with an ultimatum – be vaccinated or be dismissed.

If an employee is dismissed then the question is whether that dismissal is fair and reasonable in all of the circumstances.

Depending on those circumstances, the employee could have an argument for unfair dismissal and/or discrimination in an employment tribunal.

Can I refuse to have the vaccine without it affecting a person’s employment or employee rights?

This will largely depend on how long the employee has worked for the employer, what job they do and why they are refusing the vaccine.

An employee who has been employed for more than two years does have the option to challenge a dismissal in an employment tribunal by pursuing an unfair dismissal claim.

This means that the employer will have to evidence a fair reason for the dismissal and will have to show that a fair process was followed.



A medical worker prepares a dose of Pfizer-BioNTech covid-19 vaccine

We do not have any case law on this area at the moment, however different sectors will have varying requirements on the need for employees to be vaccinated. Therefore, some industries will have stronger arguments for employees to be vaccinated than others.

However, an employee who has been employed for less than two years generally does not have the right to claim for unfair dismissal.

Employers should be mindful that employees are able to claim discrimination and automatic unfair dismissal, regardless of their length of service.

Therefore, the reason and context for the employee’s refusal will be of utmost importance.

Does my employer have to amend my employment contract in order to make the change legally binding?

When looking to make a change to an employment contract the employer should follow a consultation process to seek the agreement of any employees affected by the change.

However, if following consultation, an employee refuses consent to a contractual change then the employer could consider forcing through the change anyway, without consent.

The effect of this is that the change is then deemed to have taken effect.

Depending on the circumstances, the employee may have a claim for constructive unfair dismissal so it is strongly advisable that the employer takes legal advice prior to implementing any changes.

Am I obliged to have the vaccine each year, even if the threat of infection has diminished?

As above, different employers will have different views on the importance of being vaccinated. As always with employment tribunals, what is considered ‘reasonable’ is always a sliding scale and dependant on the specific facts in each case.

What can I do if I feel I am treated unfairly, discriminated or victimised by my employer?

Seek legal advice as soon as possible to consider if there are any legal arguments or claims. Employment tribunal claims are very time sensitive so the sooner advice is taken, the better.

In the first instance, it is usually appropriate for an employee to raise the issue informally with their line manager.

If this does not resolve the matter, the employee should consider raising a formal grievance. This should prompt an employer to start a formal investigation into the matter.

Whilst, being treated ‘unfairly’ is not a legal claim in itself, some facts could give rise to a constructive unfair dismissal claim.

However, being treated unfairly as a result of having a protected characteristic or as a result of raising a discrimination issue could give rise to a discrimination or victimisation claim.

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