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Another year begins, but the great vaccination debate rages on.  

Just before Christmas a well-publicised move by FM Global to begin termination processes against staff who refuse to get vaccinated, or refuse to show proof of vaccination to the employer, hit the headlines.  This hard line has caused a stir in the market stateside with many citing the alienation of talent, infringement of civil liberties, discrimination, and rival companies poised to swoop in and grab employees that have been turned loose as possible impacts of the move.

I’m not surprised to see this action taken in the US, where employment rights are perhaps not as strong as in the UK; it is a strong statement in support of public health, and could be perceived by many as the morally correct thing to do, but are we likely to see similar moves in the UK in 2022, and if so, could this lead to legal challenges?

Not a novel concept

In many ways, mandatory vaccination in the UK isn’t a novel concept. On 9th November, the Department of Health and Social Care set out regulations to amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, to ensure that NHS and independent health sector operations can only employ or engage a person in CQC regulated activities if that person can provide evidence that they have been vaccinated with a complete course of a Medicines and Healthcare products Regulatory Agency (MHRA) approved COVID-19 vaccine, subject to limited exceptions.  This provision applies to anyone aged 18 and over who has direct, face-to-face contact with service users and must be evidenced by 1st April 2022.

From November 21st last year, it also effectively became compulsory for anyone working, or volunteering in a care home in England to be fully vaccinated against Covid-19 unless exempt.

The UK is certainly not opposed to bringing in mandatory vaccination requirements in the interests of public health.  But what of businesses outside of the healthcare sector?

The case for treading lightly

In all other sectors in the UK, employees who have been working for more than 2 years can only be dismissed fairly if an employer can show a potentially fair reason for that dismissal.  Conduct is one of those fair reasons and it may be that an employer could argue that an instruction to be vaccinated amounts to a “reasonable work instruction,” refusal of this could therefore amount to misconduct.

We have not yet seen any cases of this, but typically we would advise employers to be cautious about going down this route. There may be multiple reasons as to why an employee is refusing to be vaccinated, including, but not limited to medical exemption or religious/spiritual grounds. The lack of test cases in this area also means that we do not yet know whether an Employment Tribunal will view vaccination as a ‘reasonable work instruction’.

We must also consider discrimination laws.  Employees in the UK do not need a qualifying period to be protected from unlawful discrimination.  Therefore, if an employee is refusing to be vaccinated due to a protected characteristic (e.g., disability) then the employer would risk a discrimination claim if a dismissal took place as a result.

Encouragement not enforcement

Given the uncertainty and the protections in the UK it wouldn’t be advisable to employers to dismiss or refuse employment due to vaccination status.  Instead, we would advise employers to speak to employees about the reason for refusal and look to encourage vaccination, where possible.

Under the Health and Safety at Work Act 1974, employers are obliged to take reasonable precautions to mitigate workplace risk, this duty can extend to encouraging employees to be vaccinated, for the safety of all on the premises. Clear communication around the benefits of vaccination and a focus on dispelling some of the common myths could be beneficial, as well as creating a culture where all employees feel able to discuss any concerns with line managers without judgment.

It looks likely that a return to the office is once again imminent, so employers need to be alive to the risks that Covid-19 continues to present to staff, obtaining independent legal advice before making any decisions on vaccination policies for employees.

Michael Jenkins, Head of Legal Advice, Arc Legal Assistance

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