According to the WHO website, new data from Public Health England suggest that Covid-19 vaccines have saved, at the very least, over 6000 lives among people over 70 since vaccination started in December 2020. It is generally accepted that vaccination is the way out of the Covid-19 pandemic. The UK government has recently launched a consultation into the compulsory vaccination of care home workers. According to the gov.uk website, experts on the social care working group SAGE advise that 80% of staff and 90% of residents in care homes need to be vaccinated to provide a minimum level of protection against outbreaks of Covid-19 and currently only 53% of older adult homes in England are meeting this threshold.

This raises the obvious question, in the employment context, for other organisations and sectors, can employers force their staff to be vaccinated as a condition of employment? Making the vaccine a contractual requirement for existing staff, would mean changing their existing terms and conditions of employment, for which employers would need their agreement. If employers force this change upon staff, then this would be a breach of contract, entitling the employee to resign and claim constructive unfair dismissal. There are also potential discrimination issues that the employer would need to take into account, for example, if the employee could show that it is a genuinely held belief and worthy of respect that they do not believe in the vaccine.

For new employees joining the business, employers could make the offer of employment conditional upon evidence from the employee that he/she has been vaccinated and/or make vaccination a contractual requirement. However, the same issue of discrimination exists in these circumstances, as candidates are protected from discrimination pre-employment, in the same way that employees are.

There are also possible human rights issues, for example, could compulsory vaccination interfere with an individual’s right to freedom of thought, conscience and religion or the right to a private and family life?

The recent case of Varicka & Others v Czech Republic sheds an interesting light on the subject of compulsory vaccinations. This is not an employment law case but it concerned the Czech Republic’s statutory requirement for children to be vaccinated against nine diseases. Six applicants complained to the European Court of Human Rights about having been penalised for non-compliance: one was fined for failing to have his children vaccinated, and the others were “child applicants” who had been excluded from preschool. The applicants alleged that this was a breach of the European Convention on Human Rights, including:

• The right to respect for private and family life under Article 8.
• The right to freedom of thought, conscience and religion under Article 9.

The court agreed with the applicants that compulsory vaccination interfered with their rights to a private and family life. However, the court said that the interference was justified because the policy had the legitimate aim of protecting against serious disease, because vaccination protects not only those being vaccinated but those who cannot be vaccinated for health reasons and are reliant on herd immunity.

The court dismissed the claims on the basis of Article 9 because it said that the claims were not based on religion, so were based on the freedom of thought and conscience, and that the applicants presented no clear, logical or convincing arguments.

This case highlights the possible human rights concerns over compulsory vaccinations and though it’s not concerned with the employment context, it shows that human rights issues may not necessarily prevent such compulsory vaccination policies in care homes or elsewhere. We will monitor the outcome to the government’s consultation with interest, in the meantime, please contact the Employment Team if you have any questions about the points in this article.