Can an employee refuse to come to work if they work alongside a colleague who is unvaccinated?
Under the Health and Safety at Work Act 2015, a worker may refuse to carry out work if they believe doing so will expose them or any other person to a “serious risk” to their or the other person’s health and safety. There must be an “immediate or imminent exposure” to the hazard, and the worker must attempt to resolve the matter with their employer in good faith, preferably before they take any action.
In the context of COVID-19, this may mean that an employee is entitled to refuse work if their employer is operating in a way that breaches health guidelines or orders in a way that presents an imminent risk to the safety of the employee or others. However, as with all COVID-19-related queries, it is important to consider each situation on a case-by-case basis.
The threshold for being entitled to refuse work is high. In most workplaces, the risk presented by an employee working alongside an unvaccinated colleague is unlikely to meet the threshold for refusing to work, especially where the employer is taking other steps to mitigate the risk of employees being exposed to COVID-19 (for example, complying with public health guidance by providing appropriate PPE, enabling social distancing, and encouraging good hygiene practises).
On the other hand, the risk presented by an employee working alongside an unvaccinated colleague may meet the threshold for refusing to work if the employer is breaching health guidelines or orders. For example, if the workplace is not following a Public Health Order by allowing a non-vaccinated employee to work. This will especially be the case where the worker has raised their concerns with their employer first.
We encourage all employers to have conversations with their employees before things get to this point:
- Acknowledge that COVID-19 has been unsettling for everyone and you can understand why they might be feeling worried.
- Explain that the Government has not made COVID-19 vaccination mandatory.
- Explain that you will continue to monitor the situation and may review vaccination requirements if things change.
- Explain the health and safety measures you are taking and encourage their ongoing feedback to help employees feel safe.