Can an Employer Require Employees to be Vaccinated?
In this article our experienced Employment Law Solicitors explain the Health and Safety Disciplinaries at work.
Health and Safety Disciplinaries
Can you be disciplined for not complying with health and safety procedures at work?
In the wake of the pandemic, health and safety in the workplace has become a significant focus. Employers are trying to implement social distancing and COVID-19 compliant rules, thus may look to enforce disciplinary procedures against employees found to be failing to comply.
Employers can take disciplinary action for breaches of health and safety in the workplace. Where employees fail to cooperate with reasonable management instructions, disciplinary procedures can be commenced. Whether an instruction is reasonable will be determined by a variety of factors, current legislation will be considered, as well as the degree of risk to the employee and others and the reason for non-compliance. Employers have a duty of care towards all staff (including themselves), and where employees seriously breach health and safety measures, it is likely any disciplinary action, up to and including dismissal, will be considered to be reasonable.
Where health and safety protocols are not followed by reason of an employee’s disability, the employer may have to consider making reasonable adjustments depending on the policy in place and the possible disadvantage to the employee. Disciplinary proceedings for non-compliance that occurs as a result of a disability, may be found to be discriminatory.
Can an employer require employees to be vaccinated?
Potential issues may arise in relation to the COVID-19 vaccine, which at the moment is not mandatory by law. ACAS have provided guidance that states “Employers should support staff in getting the coronavirus (COVID-19) vaccine, but they cannot force staff to be vaccinated.” Depending on the workplace, some employees may be required to get the vaccine in order to perform their role, and as such disciplinary action may be taken if refusal is not reasonable. Again, employers should be considerate of discriminating against employees who have health conditions that mean they cannot take the vaccine, or those for whom the vaccine might otherwise be unsuitable.
The reasonableness of health and safety dismissals was discussed in the case of Newbound v Thames Water Utilities Limited.
Mr Newbound breached newly implemented health and safety procedures in relation to wearing breathing apparatus at work. He was dismissed on the grounds of gross misconduct, after 34 years of service. The Court considered the reasonableness of his dismissal and held, firstly, that where rules are newly introduced, employers must ensure that employees understand the significance of such rules or policies and are trained accordingly. Mr Newbound was not made aware of the disciplinary consequences of not using the safety equipment in question, nor had the employer ensured health and safety regulations were followed properly prior to his dismissal. The fairness of the treatment was also considered: Mr Newbound’s colleague received a written warning, the disparity between the treatment of the two contributed to the finding of unfair dismissal. However, it is key to note that despite
Mr Newbound being held to have been unfairly dismissed, a reduction in compensation of 40% was applied due to contributory fault.
Health and safety cases tend to be tricky. Employers are quick to take the moral high ground about the safety of employees and the public (as well they often might) and Tribunals are not quick to criticise employers who are, on the face of it, looking to protect the workforce or others. But Newbound shows that not every error of health and safety must necessarily lead to dismissal – and long and unblemished service should be taken into account.
