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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 75932
Experience:  Qualified Employment Solicitor
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I have worked as an IT technician for one of the NHS Trusts

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Hello. I have worked as an IT technician for one of the NHS Trusts for four years and my question is, upon the recent NHS England request for all front line staff to be vaccinated, does my Trust legally have the right to ask me to leave if I don't wish to take the vaccine?

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Is your role entirely office based?

Customer: replied 8 days ago.
The manager arguements that my job description includes onsite work which means walking around the hospital but there is possibility to keep me away from patients such as working only from office or on office site which doesn't take patients. However, the manager isn't willing to make such adjustments.

OK I understand and thank you for providing this information. Please leave it with me and I will get back to you with my answer as soon as I can, usually the same day. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about this situation and any associated issues.

As you can appreciate, this is a relatively new development, especially from a legal perspective. It is a highly dynamic situation and things can change over a short space of time, especially once challenges start being brought in through the courts or Government policies change. The current position is as follows:

No one can force an employee to get vaccinated so the physical aspect of getting vaccinated is something that will always depend on them personally and be their choice. However, a refusal to get vaccinated can have further repercussions in their job, for example if the employer has implemented a mandatory vaccination policy or there is a legal requirement for them to be vaccinated.

Whether the employer can then take any formal action against an employee who refuses to get vaccinated will depend on various factors. The starting point is that is that the employer can decide whether to only employ vaccinated staff or not and can potentially look at taking formal action against those who don’t. However, how easy that would be, or if it will even be legal, will depend on certain factors, such as:

What are the reasons for their refusal to get vaccinated – there are a few limited grounds, based on what are known as protected characteristics, which may allow an employee to refuse vaccination without being penalised for it. It includes things like having a disability, which can be affected by the vaccine, or a religious belief which prevents that. It is not just any medical condition that would qualify and it has to be serious enough to amount to a disability in law. Also, the religious belief argument will be narrowly interpreted and it is unlikely that simply not believing in vaccinations or not trusting them would qualify.

How critical to the role is it that the employee is vaccinated – an office-based job, where there are no specific identifiable vulnerable groups of people, may find it more difficult to justify mandatory vaccination. On the other hand, care jobs, where the workers are constantly facing vulnerable people, will be much easier to justify due to the critical nature of the work and how seriously an outbreak can affect them. This is especially considering any formal Government policies making vaccinations mandatory in such sectors.

As you can see, it is a complex and fast-changing area of law and the consensus is that employers can indeed make vaccinations mandatory and can potentially dismiss certain employees who do not comply, however if they have been there for more than 2 years or have a protected characteristic which prevents them from being vaccinated, it may make a dismissal more difficult to justify.

Please see here for a much more detailed discussion and guidance on this subject:

https://www.lewissilkin.com/en/insights/coronavirus-vaccination-faqs-for-employers

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.

I trust that everything has now been dealt with to your satisfaction and your original question has been resolved. If you have any further queries about it, please do not hesitate to get back to me on here. In the meantime, I wish you all the best.

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