As the UK continues its Covid-19 vaccination programme, businesses need to consider the legal implications of insisting that employees have the jab.
The Government has not yet released any guidance on vaccination for employers. However, existing employment law gives some pointers on how to approach the issue, which we have covered under the headings below.
Are there any circumstances in which an employer can require an employee to have the vaccine?
The vaccines are highly effective in protecting people, which could tempt employers to require workers to get vaccinated.
As the Government has not legislated for the vaccine to be mandatory, on balance it would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people such as the social care sector.
ACAS guidance advises that employers should support staff in getting the vaccine and detail the benefits of the vaccine to employees, but cannot force it upon them.
However, there may be circumstances in the future where it might be necessary to make vaccination mandatory for someone to do their job, for example where they travel overseas and need to be vaccinated to do so.
Why might an employee object to vaccination and what issues might an employer face?
A recent survey from YouGov suggests that 1 in 5 people are unlikely to get the vaccination. Reasons for this vary, from lack of confidence in the safety of the vaccination to being opposed to vaccinations in general.
Any available vaccine may also not be suitable for all and, therefore, there are several factors for employers to consider before rolling out a vaccination policy such as:
- Disability – there may be some individuals who are advised not to have the vaccine due to a medical condition.
- Pregnancy or gender – the vaccine is not currently recommended for those who are pregnant, breastfeeding or planning to get pregnant.
- Religion or belief – certain religious or moral objections to the vaccine could be protected under the protected characteristic of religious or philosophical belief.
Vaccination policies may therefore be indirectly discriminatory unless they can be justified. Various exceptions may, therefore, need to be carved out if an employer is looking to roll out a policy on vaccination.
What about anti-vaxxers?
It may also be that someone’s anti-vaccination position could amount to a protected philosophical belief under the Equality Act 2010.
There is certainly scope for a wide range of views on vaccination to fall within this protection, but not all views will qualify. For such claims to be successful there needs to be both a detriment and a causative connection to the religion or belief.
Can an employee be dismissed for refusing vaccination?
Failure to follow a reasonable instruction can lead to a fair dismissal; most likely ‘dismissal for some other substantial reason’ (SOSR).
Whilst there is yet to be any case law, a tribunal is likely to have sympathy with an employee who did not want to get the COVID-19 vaccine and was dismissed or disciplined as a result.
Can an employer require an employee to disclose whether or not they have been vaccinated?
Requiring employees to disclose whether or not they have been vaccinated gives rise to both data protection and discrimination issues. Information about whether employees have been vaccinated is medical data and therefore sensitive personal data and should be handled carefully in accordance with the Data Protection Act 2018.
Employers would have to consider why they need evidence of vaccination and whether it is appropriate for the business.
How will a vaccine impact an employer’s COVID-19 risk assessment?
Given the potential for individuals to refuse vaccination, risk assessments may need to determine if additional measures can be put in place if an employee chooses not to be vaccinated.
What does this mean for employers?
Employers will need to consider vaccination as part of their risk assessment and should be encouraging employees to get vaccinated once this becomes a realistic possibility for all.
If an employer intends to mandate the vaccine as part of its approach to reducing risks, it will be open to discrimination claims and will need to consider whether there are reasonable alternatives. This should be explored when carrying out the risk assessment.
Employers should be careful not to judge or stereotype employees.
Employers are likely to have legitimate aims relating to health and safety and maximising the number of employees who can attend work safely.
Vaccination policies may be a proportionate way of achieving those aims, although this will depend upon how they are operated and the impact on the individual.
Visitors to the workplace
As well as considering vaccination policies for staff, businesses also need to consider how visitors to the work environment could create risks for staff and others.
As with staff, requesting proof of vaccination creates a personal data and discrimination risk and so businesses may want to avoid this unless they have a valid health and safety concern.
The Government has suggested the creation of a vaccination passport, but this has been met with much criticism, as there are concerns it could discriminate against particular groups of people, particularly younger people who are less likely to have received the vaccine.
Despite these challenges, businesses should have clear rules in place for visitors regarding their conduct while on site. This includes the need for social distancing, setting out restricted areas and requiring the use of hand sanitiser and the wearing of a mask, as is commonplace in many public areas.
To help you understand how the Covid-19 vaccine rollout affects employers and businesses more widely, we are here to help. To find out more about our services, please contact Joanna Alexiou on firstname.lastname@example.org or at 0207 240 0521.
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