​Attempting to force the COVID-19 vaccination on an employee could be seen as misconduct.

That’s according to Sarah Buxton, a solicitor and director at the award-winning firm, FTA Law.

The UK approved the Pfizer/BioNTech Vaccine for Coronavirus on 2 December.

With the roll-out of this vaccine to dental professionals expected in the upcoming months, this brings a variety of issues relating to whether it is mandatory.

Sarah, who specialises in providing HR and employment advice to the dental and healthcare industry, is warning practice owners to seek legal advice before forcing or asking employees to have the vaccination.

The current UK legislation, The Public Health (Control of Disease) Act 1984, prohibits powers on mandatory medical treatment, including vaccines.

Sarah notes: ‘Due to the nature of dentistry and the GDC immunisation requirements, there is a likelihood an employer may try to enforce this vaccine on their employees. This could create a variety of legal issues for the employer should the employee refuse.

‘Vaccination should be treated confidentially. Whether an employee is vaccinated or not forms part of personal data, which could give rise to GDPR concerns and how that information is held. This could also cause issues where an employee may refuse an offer of employment on the basis that they do not have the vaccine.’

She adds: ‘Vaccination without consent has medical ethics and human rights law implications. Consent for any medical procedure is required, regardless of what is being undertaken – and this applies to vaccinations. It is advisable that, if you are paying for it as an employer, you have a robust consent form in place.

‘There is a possibility that employees may be able to argue constructive unfair dismissal if an employer were to attempt to force them to have the vaccine and/or treated the employee differently because they refused to provide their consent to a) confirm whether they have had the vaccination and b) refuse to have the vaccination.

‘Constructive dismissal occurs where the employee resigns and can show they were entitled to do so by reason of the employer’s conduct. This means that the employer’s conduct is serious enough to breach the employee’s contract.’

For an unfair dismissal claim, an employee can be awarded up to £88,519.

A further area of concern is discrimination.

Sarah says: 'Any persons have the right to refuse vaccination, and this refusal could be on the grounds of medical and/or their belief or for religious reasons, giving rise to a discrimination claim.'

If the employee brought a claim to the Employment Tribunal in these circumstances, the compensation which is awarded is unlimited.

Sarah adds: ‘It depends on what the judge believes to be fair and equitable.’

In conclusion, she says: ‘A vaccine cannot be forced by law, and an employer must be very careful to consider the implications that would arise from any attempt to do so.’

• For further details, email sarah.buxton@fta-law.com or call 0330 088 22 75.

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