Employment Solicitor Chris Dobbs from Frettens answers your questions on Covid and employment law covering vaccinations and Long Covid.

Can an employer force staff to be vaccinated?

In the sense of physically restraining them and forcibly performing the vaccination, no.

Under current UK law, nobody is permitted to force an individual to undergo medical treatment (including having vaccinations) against their will and under existing legislation the government is also denied that power.

It goes without saying that physically forcing someone to have a vaccine would be a criminal offence.

Employers could have a policy in place requiring every member of staff to have the vaccine.

In theory, an employer can have a policy in place requiring almost whatever it likes: the real questions are whether that policy is lawful, what an employee can do in response and whether the employer would be liable legally.

Can an employee be dismissed if they refuse the Covid vaccine?

The basic answer to this question is yes.

An employer can dismiss an individual for any reason it likes in practice and that dismissal will be effective.

This is important to bear in mind if making the decision to refuse the instruction to have the vaccination.

The question then arises as to whether that dismissal was lawful or not.

Would a dismissal be unfair?

If the employee has under two years’ service then assuming there are no discriminatory aspects to the situation, or anything else which might make the dismissal automatically unfair, there is likely to be no cause of action for the employee in this situation.

They will be barred from bringing an unfair dismissal claim.

It may be more problematic for the employer if an individual does have the required length of service.

In this situation, the employer will be relying on one of the fair reasons for dismissal in order to prevent a claim for unfair dismissal.

The employer will need to approach this carefully in deciding which route to take to ensure that the correct procedure is followed and that their actions can be deemed reasonable.

Would a dismissal be discriminatory?

Even if it might be a fair dismissal, the policy requiring vaccination and too harshly implementing it may be discriminatory and disciplinary action or a dismissal could still be unlawful.

An individual who has not had the vaccine for medical reasons, or because of a belief or religious position, could look to make a claim under the Equality Act.

This could be existing staff or job applicants refused because of not having the vaccine.

This is likely to be an indirect claim and so the employer will have to be able to justify the policy in order to avoid a successful claim.

If the individual simply does not want the vaccine or has no founded reason for not having it, an employer will be on safer grounds.

There is no obligation to hire any given individual providing the reason is not discriminatory.

You can read my article about veganism as a protected philosophical belief here.

It gives some insight into how philosophical beliefs are defined in employment law.

I also discuss vaccine discrimination further in the full article, click here to read it.

What is ‘Long Covid’?

Long Covid is a term to describe the lasting effects of having had the coronavirus.

It is so far poorly understood and there is, as yet, no defined pathology.

However, it seems to be that around 10% of people who contract the virus continue to suffer the effects for more than 12 weeks after.

Symptoms vary and are not yet established as a single set for the condition but many are comparing it to ME/CFS.

It is possible that those suffering from long-term effects of the coronavirus may be classified as disabled for the purposes of the Equality Act 2010.

So, is Long Covid classed as a disability?

To be a disability, the condition must be an impairment which has a substantial and long-lasting impact on an individual’s ability to do normal daily activities.

Long Covid will clearly satisfy an impairment.

The impact on them personally is what will then be used to assess the effect on their normal day to day activities.

These activities also have a relatively low threshold and relate to the “things some people do on a regular or daily basis” such as walking or travelling by other transport, carrying out household tasks and engaging in social activities.

That impact then has to be substantial which means ‘more than minor of trivial’ and long-lasting which means it has lasted or is likely to last more than 12 months.

It is easy to see why lasting effects of the coronavirus could satisfy the criteria but we need to await a tribunal decision before we can say for certain.

It could well be that the particular lasting symptoms on a given individual is the deciding factor.

It is probably safest to assume that Long Covid could be within the definition when making workplace decisions and to act accordingly. In most cases this will mean:

• Consulting with the individual about the effects of the illness
• Seeking appropriate medical advice either from the employee’s own GP or an independent clinician
• Ensure managers are trained in the sickness absence policies and how these related to absences which could arise from a condition which is a disability; and
• Be prepared to consider appropriate adjustments to accommodate the effects of the condition if it is a disability.

To read the full article on Long Covid, click here.

Employment solicitors in Bournemouth, Christchurch and Ringwood

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