History of Vaccines

Vaccinations have historically been compulsory, where it was a legal requirement under the Vaccinations Act 1853 for children to be vaccinated before they reached three months old.

Many individuals felt that the 1853 act was in direct violation of their civil liberties and in 1898, after mass protests, The Vaccination Act was updated. From 1898 parents were legally allowed to ‘conscientiously object’ to vaccinations, choosing weather or not to vaccinate their children.

This right to ‘conscientiously object’ has been echoed through all modern laws since.

Within the Human Rights Act, Article 8, there is express protection for an individuals’ rights to a private and family life. This includes individuals’ rights to their own bodily integrity. In short, the government and public bodies cannot force you to do something with your body that you do not want to do. This autonomy includes protection from being forced to have vaccinations.

Being forced to have a vaccination could amount to an unconsented physical intrusion. This is a direct human rights violation and can be considered a criminal act for public bodies.

How does this Legislation fit with the Health and Safety at Work Act 1974?

All employers have an obligation to keep employees and the general public safe under the Health and Safety at Work Act 1974.

Employers must ensure that they have put in place as many policies and procedures to help reduce the spread of infectious diseases.

Thorough hand washing, providing alcoholic products for hand decontamination, ensuring that social distancing is adhered to and ensuring staff have Protective Personal Equipment (PPE) are all examples of ways that employers can ensure the reduced spread of infectious diseases.

Forcing or coercing an individual to have a vaccine that they don’t want should be a last resort for employers if all other measures aren’t as effective as required to comply with their legal obligations under the Health and Safety at Work Act.

Can an Employer have a Vaccination Policy in its Contract?

Yes, an employer can put in place a vaccination policy with the provision that the clause is reasonable.

The clause cannot force an employee to have a vaccination, however it can detail the repercussions of not reasonably having a vaccination. The key word to consider when implementing any such clause is ‘reasonable’. There are many circumstances under which an individual may not be able to have a vaccination. Dismissing an employee for reasonably refusing to have a vaccination would be unfair and could result in a claim at tribunal depending on the individual circumstances.

Overall, just having a policy in your employment contract would not give you the opportunity to force an employee to have a vaccine or enable the employer to dismiss an employee for refusal to have a vaccine. However, having a Vaccination Policy could strengthen any fair dismissal you are able to gain (where an employee must pose a serious health and safety risk to others).

If you are considering adding a vaccination clause to your contract or handbook it is important that you complete a consultation with employees regarding the changes to their terms and conditions.

Potential Risks

Wherever an employer forces or puts unreasonable pressure on an employee to get a vaccine, this could be considered a criminal act. This could include threatening an employee with dismissal if they refuse to get a vaccination.

In Employment Law, all dismissals must fall within the band of reasonable responses. Therefore, the employer has to evidence having an employee who is not vaccinated poses a significant risk, and that a dismissal is in the best interest to keep employees or the general public safe.

In addition, where an employee has refused to be vaccinated, a dismissal has to be the last resort. Until an employer can evidence that they have exhausted all possible reasonable adjustments and alternative working practices (such as work from home, work with PPE, socially distanced working) the employer will not succeed with a fair dismissal if the individual has over two years’ service.

Only once an employer has determined that there is a significant health risk and exhausted all reasonable adjustments could a dismissal be potentially fair.

While in Employment Law there is a three-month window in which an employee must make a claim at an Employment Tribunal, the UK criminal system does not have a ‘statute of limitations.’ Therefore, at any point in the future an employee could take criminal action against their employer if they feel they have been placed under duress to have a vaccination they didn’t want.

In this instance, an employee would need to prove the duress that they were under for a criminal claim to be successful.