Vaccine passports would be “discriminatory”; that was the soundbite from the UK minister responsible for the vaccination programme as he did the rounds on the weekend news programmes and political talk shows. But what about the workplace? Could an employer require its workers and/or consultants to get the jab before allowing them to attend employer or client premises? Particularly as a way of showing compliance with health and safety duties?
That approach appears to be favoured by some employers. A recent survey of 750 executives carried out by HRLocker revealed that 23% of employers plan to mandate vaccination against COVID-19 for their staff, whilst more would prefer to employ a worker who is vaccinated rather than one who isn’t.
Various companies are apparently listening to that point of view, launching software to help employers to track which employees have had vaccines and to provide e-learning modules about vaccination in order to encourage employees to have the vaccine when offered.
Our view on this issue, however, is that employers will not be able to make vaccination mandatory and there are a number of potential consequences for employers to consider.
Will the government make the vaccine mandatory?
The UK government has not legislated for the vaccine to be mandatory, although we note that in November 2020 the Health Secretary Matt Hancock said that the government would not rule out such a step. At present and for the foreseeable future, however, individuals are able to turn down their invitation to be vaccinated if they choose.
Given that the vaccination is not a legal requirement it would be difficult for most employers to make the vaccine mandatory for their workforce.
What problems could arise from mandatory vaccination?
Whilst the minister responsible for the vaccine programme did not expand on why he considers vaccine passports may be discriminatory, in the employment law context, there are a number of potential discrimination issues to consider. Pregnant women, for example are currently advised not to be vaccinated, and so a mandatory vaccination policy may well discriminate against such a group unless it is very carefully drafted. It is also possible that certain religious or moral objections to the vaccine would be protected under the Equality Act 2010.
Despite the media attention it receives, it may well be difficult to establish “anti-vax” as a genuinely held philosophical belief worthy of respect in a democratic society, especially if a person has previously received other vaccines in the past. However, there is no doubt that such a belief does exist and that individuals may raise this belief as an objection to receiving the vaccine. In addition, the two vaccines which are being rolled out currently do not contain any material of animal origin, according to the NHS website, and so there should be no issue in relation to veganism, which has been accepted as a philosophical belief protected by the Equality Act. There are, however, some religions which would not permit medical treatment including a vaccine.
In addition, cautious employers may be concerned about any adverse reactions to vaccination following the implementation of a mandatory vaccination policy. An employee who was compelled to obtain the vaccine and who suffers an adverse reaction may attempt to bring legal proceedings related to personal injury against the employer, although the likely outcome of any such proceedings is difficult to gauge in the absence of relevant cases previously decided by a court on the issue.
Imposing a contractual requirement that employees are vaccinated would amount to a change in terms and conditions which would need to satisfy the usual considerations where a change to contractual terms is proposed. It is possible that many employees would object to such a requirement, perhaps due to personal concerns about the vaccine or because they disagree with their employer’s having a right to insist on what is undoubtedly an invasive medical procedure and safety measure. Without agreement the employer would be faced with either unilateral imposition of the change in terms or terminating and offering re-engagement of employees on the new terms. Both options carry risks, particularly when the change is so controversial and when the potential human rights and discrimination issues discussed above are considered.
Are there any circumstances where an employer could insist upon vaccination?
The Advisory, Conciliation and Arbitration Service’s (Acas) guidance suggests that one example where mandatory vaccination may be acceptable is where an employee is required to work abroad and must receive the vaccination in order to travel. In practice, this is likely to depend on the government guidance in the country of travel, and whether there are any permitted alternatives to vaccination (such as quarantine measures) which the employer could reasonably accede to for the employee.
It may also be possible to require vaccination in circumstances where workers are required to work in spaces which cannot be made COVID-secure, or where the employee cannot perform their particular role without having been vaccinated, in the social care sector for example, where a refusal to be vaccinated could put vulnerable people at risk. In such cases we consider that an instruction to employees to be vaccinated would likely be held to be reasonable by a tribunal.
An employer considering mandatory vaccination will need to be aware that the lawfulness of such a policy will very much be specific to business and workplace circumstances and risk assessments. A general mandatory policy is unlikely to be possible for most employers in our view.
Could an employer dismiss an employee for a failure to be vaccinated?
Failure to follow a reasonable instruction can lead to a fair dismissal. This means that the instruction to have a vaccine would need to be reasonable in the first place and, as discussed above, we consider that there are limited circumstances in which this will be the case.
Where the instruction is reasonable, the dismissal process also has to be fair, with each case considered on its own facts. Only an employee who unreasonably refuses to be vaccinated could be fairly dismissed. There must be an opportunity for the employee to set out their rationale for the refusal, and the employer will need to consider the reasonableness of this.
Even then, there may be alternatives to dismissal (re-deployment, for example) which could pose less risk to the employer and which may be considered first.
Would mandatory vaccination eliminate the need for social distancing and other measures?
Widespread vaccination may eventually reduce the measures required to make a workplace COVID-secure, however, in practice it is unlikely that all employees in any given workplace will be able to be vaccinated in the near future.
At present, the Parliamentary Joint Committee on Vaccination and Immunisation currently recommends prioritising vaccines for the elderly and older care home residents, followed by NHS front-line staff, care home workers and then other groups until everyone over 60 and younger people with underlying health conditions have been offered a vaccination. Pregnant women and women intending to become pregnant in the near future have been advised not to have the vaccine and so it remains to be seen if and when the types of social distancing and COVID-secure measures that employers have introduced since the start of the pandemic can be reduced or removed altogether even after the vaccine is more widespread.
Employers should therefore be cautious about treating the vaccine as a mechanism to remove other measures.
What about data protection?
Whether or not an employee has been vaccinated is health information and will amount to special category personal data (sensitive personal data) under the Data Protection Act 2018. This comes with significant risks for employers who may not be used to handling such sensitive personal data and employers would have to carefully consider why they need evidence of vaccination and whether it is appropriate for their business.
Should employers have a vaccine policy?
At present, the government is rolling out widespread vaccination of the population and so it is sensible for employers to consider a vaccine policy for their workforce.
Any vaccine policy must be in line with the employer’s health and safety policy and risk assessments. Employers may also wish to consult with their employees on the contents of such a policy before it is rolled out.
Given that there will be very few circumstances in which employers would be able to make a vaccine mandatory for all employees, any vaccination policy would need to consider the needs of different types of employees and would need to be clear that vaccination is not mandatory.
Any such policy would need to include information on the UK government’s vaccination programme, information on human rights and discrimination, and information on continuing workplace measures to ensure the reduction in the spread of COVID-19 to any employees who remained un-vaccinated.
Clearly, such a policy would also need to be in line and consistent with any other COVID-related policies which have been implemented.
What should employers do next about the vaccine?
The issue of vaccination may divide the workforce, with opinions differing between age groups or other types of employees. Our view, therefore, is that communication around this issue is key, especially where most workers are still working remotely and unable to come into their usual place of work.
Any policies on this topic will need to be carefully drafted, especially where there are disciplinary measures related to continuing COVID-secure workplace measures.
Should you require any assistance with your employment arrangements during the Covid-19 pandemic, please do not hesitate to contact the co-head partners of our employment department. Ewan Keen can be reached at 020 3206 2724 or Ewan.Keen@smab.co.uk or Tamara Ludlow can be reached at 020 3206 2739 or Tamara.Ludlow@smab.co.uk.
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