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HCR Law Events

22 January 2021

Covid-19 and vaccinations

Can a school require employees to be vaccinated against Covid-19?

For many staff, the vaccine is welcome news.  For others however, this will be a sensitive issue that will require careful communication with employees and any staff representatives.

The government has not legislated for the Covid-19 vaccine to be mandatory, so on balance it would be risky for schools to insist on vaccination, even in an environment such as a school where there is often close contact and social distancing can be difficult, particularly in the younger years.

ACAS have produced guidance which advises that employers should support staff in getting the vaccine but cannot force them to be vaccinated. However, it acknowledges that it may be necessary to make vaccination mandatory where it is required for someone to do their job, for example where they travel overseas and need to be vaccinated.

We address some of the potential barriers to introducing a mandatory vaccination requirement below.

Potential discrimination issues

Any available vaccine may not be suitable for all. For example, some of the vaccines in production are not suitable for certain individuals with suppressed immune systems.  In order to avoid arguments of disability discrimination (where an employee is unable to get the vaccine because of a health condition) or age discrimination (where it is not suitable or available for those of a certain age), any requirement would need to be couched in terms which allowed for exceptions. It is also possible that certain religious or moral objections to the vaccine could be protected under the protected characteristic of religious or philosophical belief. There may also be a question as to whether ‘anti-vaxxers’ are covered by philosophical belief.

There would then be a separate question of how those employees (who are unable to get the vaccine) are treated in the workplace if they are not immunised and how workplace practices are modified to reflect that the majority of other employees are vaccinated.  For example, it is possible (depending on a whole range of factors, including the efficacy of the vaccine) that protective measures could be relaxed where staff have been effectively immunised (although this is likely to take some time given the likely period for roll-out of a vaccination programme). For those who cannot be immunised, it may be appropriate to continue with appropriate protective measures (to protect both them and any colleagues, pupils or other visitors to school site who are not immunised) or consider redeployment, and potential discrimination arguments noted above would need to be considered in determining  whether or not that is appropriate.

Effect of vaccination on workplace health and safety measures

Although widespread vaccination may eventually reduce the measures required to make a workplace COVID-secure, it remains to be seen if, and when, the types of measures schools have introduced since the start of the pandemic can be reduced or removed altogether. It may be a long time before sufficient numbers of people are vaccinated, it is very unlikely that any vaccine will be 100% effective, and there may be both employees and pupils who are not vaccinated for reasons set out above.  In due course schools will need to be cautious about treating the vaccine as a mechanism to remove other measures.

Summary

For those who can receive the vaccine, introducing a contractual requirement that they do so would amount to a change in terms and conditions and so has added complexity and risk. Any contractual change would need to satisfy the usual considerations where a change to contractual terms is proposed, in particular the employee would need to be consulted and, ideally, agree to the change.   For that reason, it is more likely that schools, and employers in general, will take the approach of encouraging and supporting staff to be vaccinated, rather than insisting upon it as a contractual term.

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About the Author
Kristine Scott, Partner, Head of Education Sector and Cheltenham Office

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