As the UK continues its Covid-19 vaccination programme, employers need to consider what the legal implications are of insisting their staff are protected.
Six months into the vaccination programme, the Government has still to publish any guidance on how employers should approach vaccinations. However, existing employment law gives employers some pointers on how to approach the issue.
Can an employer insist an employee 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 made vaccination mandatory, it would likely be risky for an employer to insist on vaccination, even in workplaces where there is close contact with vulnerable people such as the social care sector.
ACAS advises that employers should support staff in getting the vaccine and detail the benefits of the vaccine to employees, but that you cannot force it upon them.
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.
What if an employee objects?
A recent survey from YouGov suggests a significant number of people are still likely to resist vaccination. Reasons for this vary, from lack of confidence in the safety of the vaccination to being opposed to vaccinations in general.
Vaccination may not be suitable for all. Employers should consider many factors before introducing a policy:
- 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.
Enforcing a vaccination policy may therefore be indirectly discriminatory unless they can be justified. Various exceptions may need to be made 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 connection to the religion or belief. Tribunals are yet to
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 highly sensitive. It 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?
As individuals can refuse vaccination, risk assessments may need to carried out if additional measures are to be put in place.
What does this mean for employers?
Employers should 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 make vaccination compulsory, they 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 are likely to have legitimate aims relating to health and safety and maximising the number of employees who can attend work safely and so, a vaccination policy may be a proportionate way of achieving those aims, although this will depend upon how they are operated and the impact on the individual.
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.
We can draft a vaccination policy and assist you with putting it in place.
Philip McCabe, 6th June 2021