With the roll-out of the Covid-19 vaccination now well under way in the UK, you may be wondering what your rights are as to whether you can be legally obligated to take up the vaccine when your turn comes. Can employers mandate that their employees must be vaccinated before returning to the workplace and for families, what happens when separated parents disagree over whether to vaccinate their children in order to go on holiday?
Vaccines are not presently compulsory by law. Whilst changes in legislation have recently come into force giving the government powers to prevent, control or mitigate the spread of an infection or contamination, new legislation explicitly states that regulations cannot require a person to undertake medical treatment, including vaccination.
Here our legal experts answer some of your questions.
Can my employer force me to have the Covid-19 vaccine?
Employers will most likely seek to encourage employees to take up the vaccine, without making it compulsory.
However, depending on the type of work you do, and sectors that you work in, it may be within your employer’s legal right to take action if you are not going to be vaccinated and they think there are good reasons why you should be.
For example, this might apply to people working in healthcare or care home settings. In some circumstances, depending on the terms between the employee and employer, employees could in fact be dismissed for refusing the vaccination if it means they will present a threat to themselves, patients or service users.
Failure to follow a reasonable instruction can lead to disciplinary action and failure to agree to have the vaccine might, depending on the circumstances, lead to a potentially fair grounds for dismissal, whether on the basis of misconduct and/or 'dismissal for some other substantial reason' (SOSR).
An employer considering dismissing an employee as a result of a refusal to be vaccinated will need to give careful thought to whether there are any alternatives to dismissal - for example, reallocating the employee to another role where this does not amount to a detriment in the particular circumstances. Due process will also need to be followed giving careful regard for all relevant issues.
Legal advice should be sought before taking any action that might involve any detriment, including dismissal, to an employee who refuses vaccination, given the fact-specific nature of these issues.
I suffer from a disability that means I can’t have the Covid-19 vaccine
You may have been advised by a medical professional not to have the vaccine due to a medical condition. If this is the case and your employer has asked you to have the vaccine, your employer may wish to understand why you are not able to comply.
Many employers want to encourage their disabled employees to come forward to ensure that they make any necessary reasonable adjustments on account of this, as appropriate.
For further employment law advice call us todayCan a prospective employer ask me if I have had the Covid-19 vaccine?
Employers are not normally permitted to ask interviewees health-related questions, which in this case would include your vaccination records.
There are however, limited exceptions to this that could apply to sectors and job roles where there is a particular health and safety reason, meaning the employer needs to know whether you’ve been vaccinated or not.
Will my employer have a right to hold my Covid-19 vaccination data?
Your employer may have good reason to collect and hold your Covid vaccination data if it means that they are able to ascertain whether an employee is deemed “safe” to work with.
Under both GDPR and the Data Protection Act, processing of personal data concerning health constitutes a special category so is prohibited, unless in certain limited circumstances including if “necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment” and “providing for appropriate safeguards for the fundamental rights and the interests of the data subject”.
However until the vaccine has been fully rolled out and sufficient data can demonstrate its effectiveness, it is unlikely that there will be sufficient reason for your employer to change its procedures and policies around the collection and holding of employee vaccine data, which under normal circumstances it would not usually seek to do.
Will parents be asked to vaccinate their children against Covid-19?
At present, there is no legal requirement in England and Wales for a child to be vaccinated and there is a degree of uncertainty as to the exact legal position of children regarding Covid-19 vaccination.
In law, if you have ‘parental responsibility’ for a child, you are deemed to have ‘all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property.’
My ex-partner and I disagree over vaccinating my child for Covid-19. What would the Courts say?
If both of you with parental responsibility disagree about whether your child(ren) should have the Covid-19 vaccine then the court would interject as the decision maker through the mechanism of a Specific Issue Order made under Section 8, Children Act 1989.
The recent case of M v H and Others (December 2020) provides a useful insight into how the courts may deal with any future applications from parents concerning the administration of the Covid vaccines to their children.
In M v H and Others, the father’s application was to ensure his children were vaccinated according to the NHS vaccination schedule but also, widen the scope of his application to include vaccines for future travel and vaccination against Covid-19.
However, Justice Macdonald confined the issues to be determined to what is currently on the NHS vaccination schedule only.
The Father succeeded in his application against the mother for a Specific Issue Order under Section 8 of Part II of the Children Act 1989 to allow both children to be vaccinated according to the current NHS vaccination schedule, as it was deemed in the children’s best interests to do so.
Justice MacDonald did not give judgment on the Covid-19 vaccine and children per se, however he commented on the court’s position in the event there is a dispute between parents and their children regarding the administration of the Covid-19 vaccine:
“It is very difficult to foresee a situation in which a vaccination against Covid-19 approved for use in children would not be endorsed by the court as being in a child’s best interests” Justice MacDonald
For further Family Law advice call us todayOur legal experts are here to help if you require more in-depth guidance around the legal issues relating to the Covid-19 vaccine. We are just a call away.
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