The biggest vaccination program in the UK’s history began on 8 December 2020 when Margaret Keenan, aged 90, was vaccinated at University Hospital, Coventry, with a Covid-19 vaccine manufactured and developed by Pfizer and BioNTech.
At the time of writing this blog, over 29 million people in the UK have received at least one dose of a Covid-19 vaccine. It is expected that at least 32 million people will have received the first dose by 15 April 2021. This is of course an amazing achievement for the NHS and puts the UK far ahead of Europe and most of the rest of the World.
This vaccination rollout will now create the opportunity for people to start to return to the workplace. This however raises a myriad of legal issues including whether employers can require staff to be vaccinated before returning to the workplace and whether they can fairly dismiss employees who refuse to be vaccinated. It is also likely to create new areas for potential litigation including in the areas of discrimination, health and safety and data protection.
Can an employer require employees to be vaccinated against Covid-19?
While it may be possible for certain employers to require staff to be vaccinated, it requires a detailed consideration of how a mandatory vaccination policy will address the ongoing risks of Covid-19 on the workforce and will require a carefully planned implementation process.
The likely starting point for a mandatory vaccination policy is to consider whether this would amount to a reasonable management instruction. This is a balancing act between the employer’s reasons for requiring vaccination and the employee’s fundamental rights and freedoms within the workplace. Relevant factors may include: the nature of the employee’s role; their work location; the level of interaction and proximity to work colleagues and members of the public; any risks identified by a health and safety risk assessment; any specific health and safety duties; and the level of interruption caused to the business by a Covid-19 outbreak.
Vaccination is clearly a more significant issue for employers in high-risk sectors such as health and social care sectors and where there is a high level of interaction with the public such as retail and hospitality sectors. When applying some of the above factors, it is likely that employer operating in these areas will be able to adopt a mandatory vaccination policy and rely on this being a reasonable management instruction. The case for vaccinating employees in office-based environments is much less compelling, particularly where interaction can be limited by some or all of workforce continuing to work from home.
Employers will need to carefully assess the specific workplace risks relating to Covid-19 and identify the benefits of vaccination against these risks. After completing a health and safety risk assessment, employers may establish suitable alternatives to mandatory vaccination such as regular testing, social distancing, the use of PPE or encouraging, rather than requiring employees to be vaccinated.
The process for introducing any mandatory vaccination policy should include an appropriate consultation process to allow employees to come forward with any questions, concerns, or objections. This will also allow employers to assess whether one of the exceptions to mandatory vaccination should apply. These exceptions would include relevant medical conditions or disabilities; religion and belief; and pregnancy and maternity discrimination.
Can an employer discipline and/or dismiss an employee for refusing to be vaccinated?
If an employee refuses to be vaccinated and none of the exceptions apply and there are no alternatives such as modifying their duties or work location, then their refusal to follow a reasonable management instruction will amount to potential misconduct.
Employers must tread carefully if they decide to commence disciplinary and dismissal action against an employee who refuses to be vaccinated. There is no case law to guide an employer on what an employment tribunal would decide when assessing the balancing exercise between an employer’s reasons for requiring vaccination and an employee’s reasons for refusing it and deciding whether a dismissal was fair.
If an employee’s refusal is deemed to be unreasonable then disciplinary and dismissal action might be justified on the basis that they are not acting in the best interests of their employer, work colleagues and possible customers to take care of their health and safety. However, ACAS guidance does not currently support this approach. We therefore consider that it is unsafe to proceed with any disciplinary or dismissal action on these grounds. Instead, and where possible, employers should continue to engage with employees to overcome their objections rather than treating a refusal to be vaccinated as a disciplinary matter.
What are the potential discrimination issues to consider when asking employees to be vaccinated?
Employers will need to be aware of the exceptions that will apply when asking employees to be vaccinated. Employees who suffer from a medical condition that may become worse as a consequence of taking the vaccine will have a legitimate reason for refusing it. Their refusal would then not amount to failure to follow a reasonable management instruction. An employee’s fear of needles can amount to a disability under the Equality Act and therefore require a reasonable adjustment of accommodating their objection to being vaccinated.
The current vaccines in the UK are not meant to contain any eggs or animal products. However, an employer should not ignore any employee’s objections to the vaccine on grounds of religion or belief as there is still a risk of valid discrimination claims being brought. It is unlikely that an employee with anti-vaccination beliefs would be protected under the Equality Act as their belief is unlikely to meet the legal test required of being genuinely held, cogent, serious and worthy of respect in a democratic society.
Public Health England currently advises pregnant or breastfeeding women that they should not routinely have the Covid-19 vaccine. It is likely that forcing such women to have the vaccination could amount to indirect sex discrimination and should therefore be avoided.
Older people are currently being vaccinated as a priority and private vaccination is not currently available. It is therefore possible that younger employees who are subjected to any form of disadvantage by their employer for not being vaccinated could bring a successful claim for unlawful age discrimination.
Finally, it is already becoming clear that there is a higher proportion of ethnic minorities failing to take up the opportunity to be vaccinated with Black ethnic groups being found to be most hesitant, followed by those of Pakistani or Bangladeshi ethnic origin. Their decision not to accept the vaccination would need to be carefully considered by an employer to avoid a successful claim for unlawful race discrimination.
What are the data protection implications of vaccination?
Employers may want to obtain proof that their employees have been vaccinated to allow them to track levels of vaccination in the workforce and to assess the risks of transmission. The government is even considering whether to introduce “Covid status certification”.
The details of whether an employee has been vaccinated will amount to health information and therefore constitute special category data under current data protection laws. Employers must process this data in the same way as it processes other health data. This means that the processing of this data will be allowed for health reasons and on grounds of health and safety. However, employers must use a health professional to carry out the processing exercise or advise employees that their vaccination status will be kept confidential and will only be disclosed in specific circumstances, for example to assess workplace health and safety risks.
Next steps for an employer
In future, most employers will want to incorporate an express right in their employment contracts to require all new employees to be vaccinated. Any contractual changes to an existing employee’s contract will require consultation and the usual steps should be taken to obtain their express consent to this variation in their terms of employment.
An alternative to introducing a contractual change would be to introduce an employment policy on Covid-19 vaccination. This policy would seek to encourage all employees to be vaccinated when possible but consider the various exceptions for when this is not appropriate. A policy would need to cover the purpose and benefits of vaccination, the scope of coverage, entitlements to pay and data protection and privacy rights.
For advice or further information on complying with Covid-19 rules in the workplace or to obtain a FREE Vaccination Policy, call Henry Doswell of Doswell Law Solicitors on 01233 722942. Alternatively, email Henry at henry@doswell-law.com
Disclaimer: Whilst every reasonable effort is made to make the information and commentary contained in this blog accurate and up to date, Henry Doswell takes no responsibility for its accuracy and correctness, or for any consequences of relying on it. The information and commentary in this blog does not constitute legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal advice from a lawyer about your case or matter.