Microsoft has joined the growing list of companies requiring workers to be vaccinated in its US office, which raises the question: Can employers force their staff to have the Covid vaccine?

*Note: This article is written from the perspective that the same policy will be applied under the English Law.

An employer can reasonably instruct an employee to take the vaccine, but that will depend on the circumstances. Currently, only regulated care homes can legally require workers to be vaccinated from 11 November 2021. Therefore, employers in the social care sector may mandate their employees to take the vaccine and rely on the mandated requirement of the regulator to justify the policy.

An employer outside of the regulated care home sector arguably does not have the justification of protecting extremely vulnerable people to justify mandating staff to take the vaccine. An employer who wishes to impose a mandatory vaccination requirement for its staff will need to consider the following legal issues:

• Constructive and Unfair Dismissal: Demanding an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal. Furthermore, if an employee refuses to have a vaccine and does not resign, the employee may have to be dismissed on the grounds of conduct or some other substantial reason. This means if an employer enforces the policy by dismissing those who did not comply, they may also face unfair dismissal claims.
• Discrimination: A mandatory vaccination requirement could indirectly discriminate against employees with certain protected characteristics. Currently, individuals must wait their turn, in order of priority, to be offered vaccination. Therefore, allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees. Employees with suppressed immune systems may not be eligible for the vaccine due to their disability. Therefore, an employer could face a disability discrimination claim. It is also possible that the protected characteristic of religious or philosophical belief could protect some religious or moral objections to the vaccine. For example, gelatine derived from pigs is often used in mass-produced vaccines. This may be a concern for Muslim, Hindu, vegan or vegetarian employees.
• Personal Injury Proceedings: There is a risk, albeit a remote one, that vaccination could have adverse side effects for some individuals. Therefore, if an employee who was compelled to receive the vaccine by an employer suffers an adverse reaction, they may attempt to bring personal injury proceedings against the employer.
• Data Protection Implications: There could be data protection implications when requiring employees to provide information on their vaccination status. Personal data may be collected in connection with the employee’s vaccination, and it is likely to constitute special category personal data and will therefore need to be processed in line with GDPR.

The above legal issues will not be a barrier for an employer to enforce a policy that would mandate an employee to take the vaccine. However, an employer will need to carefully consider those potential claims in order to safely operate the policy.

If you would like more information about the issues raised in this article of any aspect of employment law, please contact David Rushmere or Grace Alabi in our Employment team..