Could employers require a Covid vaccine to return to the office? We asked the experts

Some major companies in the US have already announced that their staff will need to be fully vaccinated before returning to the workplace - but could this happen in the UK? We asked experts on employment law

Almost all legal Covid restrictions in England were lifted on 19 July, with a return to the office for those who temporarily transitioned to working from home now encouraged.

Following the news that, in the United States, Netflix Google and Facebook are requiring employees to be fully vaccinated against Covid-19 before they return to the office, is this something which UK employers could do too?

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What do the experts say?

Some major companies in the US have already announced that their staff will need to be fully vaccinated before returning to the workplace - but could this happen in the UK? (Graphic: Kim Mogg)

Alan Price, CEO of BrightHR, says the answer to this situation is not straightforward, as whether or not an employer can require staff to be fully vaccinated “depends entirely on their circumstances”.

This includes what sector the employee works in and whether there are other ways to keep employees safe from Covid-19 other than “requiring them to undergo intrusive medical intervention”, Mr Price explains.

Holly Cudbill, Associate in the employment team at Blake Morgan, notes that from 11 November in England, it will be compulsory for all workers to be fully vaccinated in order to be able to attend the premises of any residential care provider, unless there is a medical reason which prevents them from getting a vaccination.

However, Ms Cudbill adds that for all other employers “the position is more complicated”.

She says that although an employer “cannot force an employee to be vaccinated”, it could decide that only fully vaccinated people can attend its premises.

However, implementing these conditions poses “serious risks of discrimination claims” from people who cannot be vaccinated because of an underlying disability, or those who choose not to be vaccinated because of religious or philosophical reasons, Ms Cudbill notes.

Another risk associated with this approach is that “people who would prefer to continue working from home may say they have not yet been vaccinated and a two-tier workforce is created,” she adds.

The legal and ethical concerns that this requirement could raise is also highlighted by Mr Price.

He explains that asking employees to have the Covid-19 vaccine when “the instruction to do so is not reasonable” will open up the employer to claims of unfair dismissal - if an employee was sacked for refusing to have the vaccine - or constructive dismissal - if they felt they had no other option but to resign in response to the requirement.

“There is also a risk of a discrimination claim if an employee has a disability which renders them medically exempt,” Mr Price adds.

Could staff refuse to return to the office?

Once an employer has decided that it wants employees to return to the workplace, it will be better to focus on making sure the premises are as Covid-safe as possible, “rather than getting too concerned about vaccination status”, says Ms Cudbill.

“Provided that the employer has taken reasonable steps to protect its employees' health and safety it will be very difficult for an employee to refuse to come back to work,” she adds.

Mr Price advises that employees should also talk to their employer about their individual position, but notes that providing evidence of a medical exemption from vaccination against Covid may help to highlight the situation they are facing.

If an organisation does require staff to have the vaccine before being able to return to their place of work, then employers should be able to set out the reasons clearly to staff, as well as giving them a suitable time limit within which they will need to provide evidence of their vaccination, explains Mr Price.

“It is advisable for employers to look at employees’ personal circumstances and weigh up the risk of any tribunal claim before proceeding with a vaccine instruction,” adds Mr Price.

If employees are unsure in general about returning to the office - regardless of being asked to be fully jabbed to do so - then they should speak to their employer about the position that they find themselves in, as some employees may have a right to request flexible working, explains Mr Price.

As part of this, employees can also ask for consideration to be given to permanent homeworking, but “acceptance is not guaranteed”, says the HR expert.

If the employee is concerned about their exposure to Covid-19 then Mr Price advises that the company may be able to resolve these issues by highlighting the measures it has taken to ensure that the workplace is Covid-secure, as well as making “more adjustments specific to that employee if necessary.”