The Parliamentary Assembly of the Council of Europe have passed Resolution 2361 entitled ‘Covid-19 vaccines: ethical, legal and practical considerations’ following an Assembly debate on 27th January 2021.

The Resolution briefly outlines the health and economic issues that the COVID-19 pandemic has caused and the resulting unemployment, economic decline and poverty. It is alleged that there is an air of distrust amongst the European population in getting vaccinated.

There are various recommendations with respect to development and allocation procedures of the vaccine but interestingly, there are provisions with respect to its uptake. Paragraph 7.3 of the resolution seeks to ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves. Secondly, it ensures that no one is discriminated against for not having been vaccinated, due to possible health risks or not wating to be vaccinated. The latter is particularly interesting given the media coverage of ideas such as ‘vaccination passports.’ It should be noted at this point that resolutions are not legally binding and express the view of the General Assembly as a whole in making recommendations to Member States.

Turning to issues in the workplace – especially in light of comments by Pimlico Plumbers to the BBC in that they plan to rewrite all of its workers’ contracts to require them to be vaccinated against coronavirus, if, pursuant to the Resolution, no one is to be discriminated against for choosing not to have the vaccine, it appears that a company cannot force their employees to get a vaccine even if there is a relevant clause in the contract of employment as express consent would be needed in order to be vaccinated.

The Health and Safety at Work Act 1974 places a duty on employers to protect the health, safety and welfare of all employees. It also states that reasonable steps to reduce risk must be taken. Therefore, employers may argue that requesting employees to be vaccinated is reasonable as a way to protect workplace health and safety. Reasonableness depends on the nature of the job, the workplace environment and availability of other safety measures. This suggests that under the 1974 Act, it is more likely to be considered a reasonable request should a person have a higher exposure risk in their employment – but it begs the question as to how that fits in with the Resolution, especially as the 1974 Act places a duty on employees to co-operate with their employers to meet their health and safety obligations. Unreasonable refusal to comply may result in disciplinary action.

However, the caveat to this is that employers need to be cautious where the refusal is related to a protected characteristic under the Equality Act 2010 as a discrimination claim or constructive unfair dismissal action could be brought. An example of this is that vegans could argue that the vaccination has been tested on animals and contains animal products. Ethical veganism has been found to be a protected characteristic. It would be interesting to see how the Employment Tribunals will deal with ‘anti-vaccination’ views and whether that would constitute a protected belief. The criteria for this is that the employee would need to show their beliefs are genuinely held, cohesive and worthy of respect in a democratic society. It is unknown territory whether a Tribunal would find this to be a protected characteristic.

Whilst it does not appear that the COVID-19 vaccination is mandatory at the moment, there are serious questions as to whether an employer would have the right to take disciplinary action if an employee refused to be vaccinated and did not fall under an already established protected characteristic. The Government may not be promoting compulsory vaccination, but if workers are in a situation where they are in fear for their livelihood in such a difficult economic time due to refusal to be vaccinated, they would likely feel enormous pressure to comply. That is a significant curb on an individual’s personal freedoms and choice. Employers should not introduce such measures without considered thought and thorough exploration of alternative options.

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