Can employers insist an employee is vaccinated?
The UK government has not legislated to make the vaccine compulsory. The element of choice in deciding whether to have a vaccine presents employers with difficulties. Employers looking for effective COVID-19 control measures for their business will undoubtedly be keen for their workforce to be vaccinated as soon as possible, particularly in sectors where employees work in close proximity to vulnerable people.
Employers cannot physically force an employee to take the vaccine and, as the vaccine is not (currently) commercially available, employers cannot actually control access to or make an employee take the vaccine. However, employers can strongly encourage employees to be vaccinated and, in certain sectors (such as health and social care) and close contact services, employers may be able to issue a reasonable instruction that they should do so, in order to protect the public, stakeholders and co-workers. However, taking disciplinary action or even dismissing an employee for failing to be vaccinated is not straightforward, as we discuss below.
What discrimination issues might arise?
Unfortunately, a one size fits all approach will not be appropriate. The vaccine will not be suitable for all and some employees will have perfectly legitimate reasons for refusing vaccination.
Employers will need to take into account the different protected characteristics of their employees when considering their approach to vaccination. For example:
- Age discrimination – as the vaccine is currently being rolled out to older members of the population, any policy which disadvantages younger workers may be indirectly discriminatory.
- Disability discrimination – employees with certain disabilities may not be suitable for the vaccine (or for certain vaccines), for example those with immunosuppressant conditions.
- Pregnancy discrimination – the COVID-19 vaccines have not yet been fully tested in pregnancy, so the government advice to healthcare professionals is that, until more information is available, pregnant women should not routinely be offered these vaccines. One to one discussions with healthcare professionals are encouraged to discuss the benefits and risks of the vaccine.
- Religion or belief discrimination – employees may legitimately object to being vaccinated on grounds of their religious or philosophical beliefs (perhaps based on the content of the relevant vaccine or the testing process).
Employers will need to consider potential discrimination issues including those mentioned above when drawing up any policy on vaccination and before taking any action against an employee who breaches the policy. A key factor will be whether the action can be objectively justified as a proportionate means of achieving a legitimate aim under the Equality Act 2010. Protecting the health and safety of the workforce and stakeholders certainly seems like an obvious legitimate aim; however, is it proportionate when other measures could be put in place?
Employers are also likely to be judged on the way they treat their employees during this time and showing empathy and flexibility around personal circumstances whilst encouraging compliance will assist in better engagement and resilience from the workforce.
What steps should employers be taking?
In addition to employers' common law duty of care towards their employees, the Health and Safety at Work Act 1974 requires every employer to ensure, so far as is reasonably practicable, the health, safety and welfare of employees at work. While it may be socially responsible to do more, the legal duty only applies in relation to hazards arising out of or in connection with a work activity and not those existing in everyday life – guidance is very clear that employers are not responsible for protecting against transmission of respiratory diseases prevalent in society for instance.
Nevertheless, government guidance first issued in May 2020 requires employers to take steps to make their workplaces COVID-secure and the guidance may be updated to reflect the vaccination programme.
Any workplace policy on vaccinations will involve:
- carrying out a risk assessment;
- discussion of the options and approach and approval at management level;
- consultation with any workplace representatives, including health & safety representatives and considering the wider implications;
- reviewing and updating contracts, policies and procedures; and
- a clear communication programme.
Although it will be simple to amend contracts and policies for new recruits to require compulsory vaccination, inserting such a provision in current employees' contracts may not be straightforward. Such requirements may be met with widespread resistance and the discrimination issues highlighted above would present further difficulties.
Employers should ensure their risk assessments are reviewed in light of the vaccine. The risk assessment will need to take account of any employees who refuse to be vaccinated and alternative measures will need to be put in place to minimise the risk to the health and safety of the wider workforce. This is a nuanced area and our specialist COVID-19 safety team can support you here.
What if an employee refuses to be vaccinated?
Vaccination on this scale is an entirely new and sensitive issue. We have yet to see how courts and tribunals will deal with unfair dismissal and discrimination cases in this context and are unlikely to do so for many months. Employers need to tread very carefully before disciplining or dismissing an employee for refusing to be vaccinated. A variety of factors will need to be taken into account, with each case being considered on its own facts, including:
- whether the vaccination requirement is a reasonable management request;
- health and safety requirements (including any risk assessments carried out);
- possible discrimination issues;
- the employee's reasons for refusal; and
- the implications for the employer of their refusal.
Employers in the health and social care sectors will probably be in a different position from employers whose workforce can easily work from home. Alternatives to vaccination will need to be factored in, for example: other social distancing measures, homeworking or different job roles in order to mitigate risk.
Can employers refuse entry to the workplace if an employee has not been vaccinated?
Employers have a duty of care to protect the health and safety of their workforce at work. Refusing entry to an employee who has not been vaccinated may in certain circumstances be a reasonable step in fulfilling that duty, though the circumstances are likely to be limited and if the risk were so great as to make vaccination mandatory then other significant control measures should already be in place. An employer should only use this as a last resort, once all the alternatives and the employee's reasons for not being vaccinated have been fully considered. The employer will need to weigh up the risks of the employee attending the workplace with the consequences of refusing to allow the employee access. Could the employee work from home? Could social distancing measures minimise risk sufficiently? Again, employers should carefully consider the individual circumstances in each case and the potential risk of any of the discrimination issues mentioned above.
We are still in the early days of the vaccine, with much still to learn. We do not know if those who are vaccinated can still carry the virus. If they can, the argument to refuse access is diminished as anyone could be carrying the virus.
What are the data protection implications?
In order to fulfil their health and safety obligations, employers will legitimately want to know whether employees have been vaccinated and, in time, may actually help facilitate the vaccination process itself. Employers will inevitably find themselves processing both personal and special category data. Employers will need to consider their data protection responsibilities and ensure that appropriate grounds for processing the data are clearly established and that data protection policy documentation is up-to-date and fit for purpose. In addition, the usual data protection principles of proportionality and transparency will need to be taken into account.
This is a fast moving and complex issue for employers. As the vaccination programme accelerates, we can expect government guidance which should help shed further light on the appropriate action to take and of course, while following guidance is often the socially responsible thing to do, it is usually not a legal requirement.
As always, collaborating and communicating with your workforce will help facilitate this next stage in the journey. Employers which are able to unify the workforce by being as open and transparent as possible on the approach to vaccination will find themselves in the strongest position.
Please also see our legal update: Can employers force their employees to take the COVID-19 vaccine?
If you need any assistance with the issues raised in this update please do not hesitate to get in touch.