Insights

Nighat Sahi

Published 27 September 2021
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Employees who refuse the vaccine due to pregnancy or breastfeeding fears

Is dismissal unfair?

Unsurprisingly, vaccines have hardly been out of the headlines since the start of the pandemic and for some employers, the requirement for employees to be vaccinated presents difficult territory to navigate. This is still a relatively new area for employers to consider, so what is the position if an employee refuses to have the vaccine as a result of concerns or beliefs because she is pregnant or breastfeeding? 

Government advice

The current government advice is that vaccination does not pose a risk to pregnant women, women that are breastfeeding or their babies.  Public Health England also say that there is no risk associated with having the vaccine during pregnancy or whilst breastfeeding.

Would dismissal be unfair?

Whilst an employer cannot physically force an employee to have the vaccine, they can theoretically dismiss them if they refuse. However, whether such a dismissal is fair will depend on the particular circumstances and whether it was fair and reasonable. This is likely to require consideration of the industry concerned, the employee’s role, the reason for refusal and the procedure followed by the employer.

Would it be an automatically unfair dismissal?

Dismissal for pregnancy, including all reasons relating to maternity is automatically unfair. However, there is a strong argument that dismissal for refusal to have the vaccine would not be due to pregnancy but due to the employee’s fears. Therefore, it is unlikely to be considered an automatically unfair dismissal.

Would the dismissal be direct discrimination due to sex?

It could be difficult to argue that there is direct discrimination as it would be necessary to look at how a male colleague would be treated in comparable circumstances. For example, if he refused to have the vaccine due to fear about fertility or something similar. If the answer to this is that the male employee would also have been dismissed, then there is no direct discrimination.

Would it amount to indirect discrimination?

Pregnancy is not a protected characteristic in respect of indirect discrimination protection. Therefore, a claim for indirect discrimination is likely to fail. However, there might be a potential claim for unlawful dismissal on the grounds of the protected characteristic of “beliefs”. This in turn would depend on the unique circumstances of the case. 

Where does that leave employees and employers?

This is likely to continue to be a difficult area for employers, and undoubtedly, case law will follow. If you have any concerns about how to deal with an employee who has refused the vaccination, or if you are an employee who has been dismissed, we recommend you take legal advice as soon as possible.

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