The EHRC said while it understood businesses will want to protect their staff and customers from COVID-19 by requiring employees to be vaccinated, it advised them to take other factors into consideration.
A EHRC spokesperson said: "Employers are right to want to protect their staff and their customers, particularly in contexts where people are at risk, such as care homes.
"However, requirements must be proportionate, non-discriminatory and make provision for those who cannot be vaccinated for medical reasons."
Speaking to HR magazine, Matt Jenkin, partner and head of employment law at Moorcrofts, said employers thinking about implementing a 'no jab no job policy', need to give careful consideration as to whether that is an appropriate step for their organisation to take.
Vaccinations in the workplace:
How can HR create a workable and legal vaccine policy?
What COVID means for unvaccinated workers
Employment tribunal rules on side of care home against unvaccinated employee
He said: “A key part of this consideration will be to carry out a detailed risk assessment which shows that compulsory vaccination is the best way of dealing with the risk of COVID-19 in the workplace.
“Given the other measures that could be implemented to deal with the risk, such as social distancing and increased cleaning, employers will need to show why a jab is needed.”
Jenkin said if employers don’t give this careful thought, they face the real of risk of unfair dismissal claims from those employees who are dismissed as they don’t meet the jab requirement and discrimination claims.
The CIPD published guidance this month warning companies of liability for claims of abuse and even criminal complaints if they impose vaccines on workers.
It said enforced vaccination would be a criminal offence against the person and an unlawful injury leading to claims such as assault and battery.
If staff refuse vaccination, employers should seriously consider the employee’s reasons and any concerns they may have, and look to implement alternative solutions, the CIPD warned.
This could include continued working from home if possible, social distancing within the workplace, screens, the use of PPE and so on.
An employer may could consider changing the employee’s work responsibilities or role if this could let them to work remotely or in a safer working environment, the guidance said.
Kate Hindmarch, partner in employment law at Langleys Solicitors, said vaccinations create a conflict of legal protections, as freedom of individual choice is weighed against the health and safety of others.
She told HR magazine: “Some employees may have a justifiable reason for not wanting to take the vaccine, and we would always urge employers to discuss an employee’s reluctance, whether it be related to a disability or religious reasons.
“An employer does not want to risk claims of unlawful discrimination where damages are potentially unlimited.
“Also, there is the practical issue of being able to replace and train staff who may leave.
Hindmarch said if no solution can be found, there could be serious ramifications for the employers if they dismissed or refused jobs.
“It is likely that we will see a significant increase in cases brought before the employment tribunal to decide the rights of employers versus employees,” she said.
What to do if an employee refuses to take the COVID-19 vaccine
According to Acas’s guidance if someone does not want to be vaccinated, employers should listen to their concerns.
It advised: “Some people may have health reasons, for example they could get an allergic reaction to the vaccine.
“Employers should be sensitive towards personal situations and must keep any concerns confidential. They must be careful to avoid discrimination.
“If someone is concerned about their health and the vaccine, they should talk to their doctor.”
Acas said if an employee or employer feels there's an issue, it's best to try and resolve it informally.
An employee or worker can raise an issue by talking with their:
- Employer
- Trade union representative, if they're a member of a trade union
- Health and safety representative, if they have one
- Employee representatives
If it cannot be resolved informally:
- Staff can raise a problem formally by 'raising a grievance'
- The employer could start a disciplinary procedure