EMPLOYERS are being urged juggle their duty to provide a safe workplace alongside an individual’s to refuse the Covid vaccine.

The only workplaces where bosses can order staff to be vaccinated are regulated care homes, where it will be compulsory from November 11.

But other employers have been keen to encourage vaccinations. The insurer Vitality, a big employer in Bournemouth, has told staff they will have to take weekly Covid tests, with “help towards” the cost, if they are not vaccinated.

Hugh Reid, employment law solicitor for Poole-based Coles Miller, said: “Employers have a duty to ensure – as far as reasonably practicable – the health and safety of their employees at work. So it’s reasonable for an employer to ask their employees to get Covid-19 vaccinations.”

But he said there were limits to what employers could do if staff refuse. “An employer could inform their employees that refusing a vaccination could lead to disciplinary action. But this could damage employee relations,” he said.

Disciplinary action could be viewed as discrimination on the grounds of religion, belief, disability or age; constructive dismissal; or a human rights issue. But requiring the jab might be possible in “exceptionally high-risk circumstances”, he said.

Amy Cousineau-Massey, Poole-based consultant employment solicitor with Woodstock Legal Services, said: “Employers can require staff to be vaccinated before returning to the workplace – however, like any other employment policy, the decision to require employees to be vaccinated for Covid-19 would be open to legal scrutiny.

“Employers who impose a blanket policy of mandatory vaccination that is applied strictly without taking individual circumstances into account run a high risk that such a policy would be unlawful. This is because there will be some employees who cannot be vaccinated for health or religious reasons.”

For most staff, it would be difficult for an employer to demonstrate that vaccination was essential since “the full benefits of vaccination are not yet clear and as far as we know being fully vaccinated does not stop a person from contracting or transmitting the virus”.

If an employer judged that vaccination of the whole workforce was essential, a carefully worded policy should be put in place, with exceptions allowed.

Kate Brooks, partner and employment solicitor at Ellis Jones in Bournemouth, said: “There is no legal requirement to ensure that all employees are vaccinated. That being said, all employers have a duty to provide a safe place of work and protect their employees’ health and safety. This is sometimes at odds with an individual’s right to choose whether or not to have the vaccine and to be protected from discrimination legislation.

“My advice to an employer would always be to avoid unauthorised and unpaid absences. Before getting to this point, employers must fully assess the health and safety risks of having a non vaccinated employee, and take proactive steps to avoid these risks. This could include extra PPE, social distancing, working from home.

“Employers must also understand the reason the employee refuses the vaccine. If it is for a health reason, it is very likely that the employee will be protected from disability discrimination and the employer will have additional legal duties to consider reasonable adjustments to the workplace. The employer should also be careful not to introduce polices, criteria and practices that could lead to a whole class of for example, disabled employees being treated less favourably. To do so, could amount to indirect discrimination.”

Dismissal or unpaid absence could be a last resort where health and safety could not be protected otherwise, but would require legal advice, she said.