Adverse reaction to a mandatory vaccine in the UK ‘could give rise to claims’

Out-Law News | 17 Dec 2020 | 11:25 am |

Katherine Metcalfe tells HRNews that employers introducing mandatory vaccine policies face a risk of claims
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  • Transcript

    Can UK employers require staff to be vaccinated? That is a question that has been doing the rounds since the Pfizer vaccine became available in the UK last week. The Daily Mail thinks so, having asked a number of employment lawyers that question, and  the view they take is yes'Employers CAN legally force workers to get vaccinated against COVID-19 - but most are likely to make the shot optional instead to avoid legal pushback'. More broadly, People Management looks at the issues businesses should consider, drawing parallels with the flu vaccine and arguing that dismissing an employee because they refuse to take a vaccine would be likely to open the door to unfair dismissal claims. Overall across the press, as you might expect, there's a wide range of views which focus on two central themes – the employment law angle covering the risk of unfair dismissal and discrimination claims, and the health and safety angle and the employer's duty to protectthe workforce. Interestingly, on possible side effects from a vaccine, a number of law firms, we notice, take the view that there is only a low risk of employees going on to pursue their employer. We disagree and explain why in our guide: 'Coronavirus: Can employers require staff to be vaccinated?' by Anne Sammon and Katherine Metcalfe. Katherine covers the health and safety angle and I had the opportunity to ask Katherine what practical advice she is giving clients on this vaccine issue. She talked to me by video-link from Glasgow:

    Katherine Metcalfe: "We're helping a lot of clients at the moment to refresh the COVID-19 risk assessments that they've already got in place for their organisation to take account of these new and evolving control measures that might help to control the transmission of the virus and to make a workplace, I guess, even more COVID secured. So we're looking with clients closely at the logistics of rolling out a vaccine to their workforce, but also what the health and safety implications of that are. On the one hand, employers have a duty to do everything reasonably practicable to ensure the health of their workforce as well as safety so it's right to look at providing a vaccine as one potential measure in a mix, but there are some downsides too from a health and safety perspective. You need to look at the individual health of your employees, and where those employees might be in groups where the vaccine is not suitable, or they have particular health issues which mean that they could suffer side effects as a result of taking the vaccine, it's really important to look very carefully about whether providing a vaccine is going to be voluntary or mandatory and we can see the potential for employees to pursue claims against employers where they are mandated to have a vaccine and then suffer side effects. We've seen this week two or three reports of new side effects, or new groups, that maybe shouldn't be having the vaccine and I think this will be an emerging area."

    Joe Glavina: "Can I ask you about a couple of articles out there Katherine quoting law firms who say that if employees had an adverse reaction to the vaccine that wouldn't be the employer's problem. But you think it is a risk?

    Katherine Metcalfe: "I think potentially it is. I don't see a huge claims risk where it's a voluntary process and, in a sense, employees are having the vaccine in a way that's facilitated by the employer just as they would if they were having it from the NHS, but we're an employer says 'you must have this vaccine' and an employee can show that they wouldn't otherwise have chosen to be vaccinated, I think there is a higher end claims potential."

    Joe Glavina "What's your advice around a vaccine policy, Katherine, because I guess the type of policy you'll have will depend on the type of business we're talking about?

    Katherine Metcalfe: "It will be, because the level of risk posed by the virus is different depending on the age and other health factors of your workforce, but also how much public contact they have, whether social distance can be maintained within your workplace and, potentially, how much travel is involved too. So not all employees are at the same level of risk and therefore the same control measures aren't necessarily required. I think on this point about social distancing, it is quite important to bear in mind that even if you do introduce a mandatory vaccine across your workforce we are still going to be in a realm of having a legal obligation to implement social distancing in the workplace, to wear face coverings where that's appropriate and to take all these extra hygiene measures for the foreseeable future. So a vaccine is an additional control, but it's not a substitute for all of those other things."

    Joe Glavina: "Last question Katherine. This idea of a mandatory instruction to employees to get vaccinated  – that's a pretty big step for employers and I imagine there will be plenty thinking twice about doing it. Is that your experience?

    Katherine Metcalfe: "I'm advising quite a lot of clients who are considering it. I'm not sure how many will actually take that forward. We are familiar with certain types of mandatory testing in workplaces, for example, drugs and alcohol and certainly lots of our clients have also looked at, and some have implemented, Coronavirus testing in their workplace but actually mandating that somebody receives a particular form of medical intervention is taking that to a quite a different level."

    The guide: 'Coronavirus: Can employers require staff to be vaccinated?' is one of a number of guides by our employment team covering issues to do with Covid-19. You can find all of those, plus news of the latest developments, on the Outlaw website.