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With restrictions in the UK having eased and the population slowly returning to the workplace, us lawyers are often being asked questions about whether employers can mandate vaccines for employees

In the UK, some industries have started mandating employee vaccines, such as within the care home sector, although this is now subject to judicial review so could be reversed. It may also be possible for other employers if it can be shown for instance that having a vaccine is a reasonably practicable way of mitigating the risk of contracting or transmitting COVID-19 following a health and safety risk assessment. However, this is mostly likely to be applicable in healthcare professions rather than in law firms.

The position regarding office workers, and specifically law firms, remains unclear. Employers insisting on existing employees becoming vaccinated is a grey area which has not yet been tested in UK law. 

Legal Risks

There are legal risks associated with mandating vaccines for employees, which stem predominantly from the members of staff who refuse to get vaccinated. If a law firm decided to proceed with mandating vaccines, the question would be how best to deal with those employees who refuse the vaccine. 

The first thing to consider is why the refusing employee does not want to be vaccinated. If the employee has a protected characteristic which is the reason for their refusal, they may have a claim of discrimination against the employer. An employer could however mitigate this risk by making exemptions for medical or belief reasons, which would make it more difficult for an employee to bring such a claim, but of course that would mean that not all employees are vaccinated as may be intended by the mandatory vaccination policy.

The law firm would then need to decide whether to dismiss the employee, allow redeployment to another role, or potentially keep the employee working from home. If the law firm decides to proceed to dismiss the employee, it could open itself up to a multitude of claims. If the employee in question has more than two years of service, they may decide to bring a claim of unfair dismissal against the law firm. If an employee has less than two years of service, they may still be able to bring a claim of unfair dismissal against the employer on the grounds of health and safety detriment.

As the position is unclear, we would recommend that employers consider alternatives to vaccinations such as regular lateral flow testing, evidence of natural immunity and mask wearing, however it remains to be seen whether consideration of alternative measures would be expected and/or considered.

Alternatives to Mandating Vaccines

Instead of mandating vaccines, employers can encourage their employees to be vaccinated to reduce workplace health and safety risks. This can include talks from medical professionals about the vaccine to dispel the myths surrounding the vaccine.

Further, consideration to the law firm's sick pay policy is also recommended. Double-vaccinated staff do not have to isolate after being in contact somebody who has tested positive for COVID-19, whereas unvaccinated staff would need to isolate. For employers who do not offer contractual sick pay, this means that unvaccinated staff members would only be paid statutory sick pay during their enforced time off, whereas those who are able to work aren't penalised. This may incentivise employees to get vaccinated.

Employers may also be able to re-open the office only for vaccinated staff and ask unvaccinated staff to work from home. However, this may raise discrimination issues and could give rise to claims if such a policy results in detriment to the staff working from home or the staff working in the office. Therefore, before taking this step careful consideration should be given to the risks involved.

Guidance for Law Firms

Ultimately, it is up to each law firm to decide what level of risk it is willing to take. 

However, it should keep in mind that if it does decide to mandate vaccines it would bear the risks not just of contravening employment legislation, but also of losing talent, as staff could decide to move to another employer without a mandatory vaccination policy.

Whilst we have not yet seen Employment Tribunal decisions on mandating vaccines, there are decisions on COVID-19 related matters that are starting to come through and we are seeing an inconsistent approach.

As always, each case depends on its individual facts, but Employment Tribunals are tending to penalise whichever party is taking the more extreme and less reasonable approach. We therefore suspect that mandating vaccines won't be considered lawful.