It is obvious that employees cannot be physically forced to have the vaccine, so can they be disciplined/dismissed if they refuse? The CEO of Pimlico Plumbers (yes, them again!) has issued a blanket instruction to all staff: once the vaccine is widely available, they must have the COVID 19 vaccine if they are to stay employed. Even government ministers have said that such a policy will be acceptable for new employees but not for existing ones, although we disagree given the inherent risk of discrimination claims from employees who are pregnant, or refuse the vaccine for religious or medical reasons.
What are the legal issues involved?
- Is it a reasonable instruction for employers to instruct employees to have the vaccine?
Arguably that depends on the industry sector in which the employer works. If the employer is a care home or in the health sector, such an instruction may well be reasonable, in order to protect the employee and those they come into contact with. However, it is unlikely to be reasonable if the employer is office-based and the work requires limited personal contact or where other protective measures such as social distancing can be more easily implemented. Plumbers, given that they have to go into people’s homes, lie somewhere in-between.
- Is it, as some have suggested, a breach of Human Rights to require vaccination in order to work?
Yes, it may be. There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual’s Article 8 of the Human Rights Act 1998 (HRA 1998) right to privacy, particularly when there are other, less invasive, ways to minimise the risk of transmission in the workplace. However, it is notable that schools in some European countries do require vaccination (of the measles, mumps and rubella vaccine) in order for admission to school.
The UK continues to be a signatory to the European Convention on Human Rights (ECHR) post-Brexit. Under section 3 of HRA 1998, UK courts are required, as far as possible, to interpret all legislation in a way that is compatible with the ECHR.
- Can the employer discipline or dismiss an employee who refuses?
That depends upon the employee’s reason for refusal – if the employee has a genuine medical reason (such as being allergic to ingredients in the vaccine, pregnant or medically unable to receive the vaccine) or is refusing the vaccine for reasons of religion or belief (for example, concerns that some vaccines may contain gelatine as a stabiliser). In those instances, the reason for refusal would be reasonable and disciplining or dismissing an employee could well give rise to successful claims for unfair dismissal and discrimination.
But what if the employee simply says they are anti-vaccination? It is worth remembering that veganism has been held by employment judges to be a belief protected by the Equality Act 2010 (“the Act”), and so it may be that being anti-vaccination could be held to be a philosophical belief equally worthy of protection. In which case, subjecting the employee to any detriment associated with it, for example disciplinary sanctions or dismissal may well also give rise to claims.
- What about pregnant employees?
An employer needs to tread carefully as the vaccine is not currently recommended for those who are pregnant, breastfeeding or who plan to get pregnant very shortly. A blanket instruction could therefore lead to conversations that employees are not comfortable having, including disclosures of pregnancy much earlier than the employee would otherwise like. Not only will that be problematic for employee relations but such a blanket requirement for vaccination is also likely to be indirectly discriminatory.
- What about the employer’s obligations towards its other workers?
An employer owes all of its workers (not just its employees) a duty to provide a safe system of work. If employers are employing or engaging staff who have not had the vaccine, it may well be argued that they are failing to meet this obligation.
Workers may justifiably refuse to attend a workplace that they believe to be unsafe, raising the potential for staff to refuse to come to work and argue that their refusal is justified on health and safety grounds.
So, employers are faced with the usual balancing act between the rights of and obligations to its various staff. Certainly, employers must document health and safety concerns and carefully consider anything which affected employees could argue was detrimental (eg segregating employees who have not had the vaccine). As usual, employers should ensure that they record their justifications in writing.
Employers should ensure that their COVID Risk Assessment documentation is detailed and complete in order to demonstrate the efforts made to protect the workforce.
- What are the data protection issues?
If employers are planning to retain evidence of which workers have been vaccinated, as it appears some are considering, they should carry out a Data Protection Impact Assessment to identify potential issues in advance. In particular, employers should consider why they wish to retain the data, and the uses to which it may be put, taking into account the above.
Broadly speaking, employers can retain data about vaccinations in the same way that they retain other medical data: it is “special category data” as it concerns health, and so the employer must ensure extra protection. This extra protection could be ensuring that a health professional (i.e. the occupational health doctor) carries out the processing, or that the employer tells staff that their vaccination status will be kept confidential and would only be disclosed in defined circumstances. Such data must also be stored securely and must be regularly reviewed in accordance with appropriate retention policies as to whether it is needed.
And guidance from the Information Commissioner’s office suggests that as a general point, an employer will struggle to justify retaining more information than a simple “yes” or “no” as to who has had the vaccine.
- Should an employer require employees to sign a vaccination waiver?
No, because liability for personal injury caused by an employer’s negligence (raising the question of whether it is indeed negligent not to be vaccinated and to attend work) cannot be waived under section 2 of the Unfair Contract Terms Act 1977. And such a waiver would be ineffective in any event if the employer is not fully complying with the COVID-secure guidelines applicable to their workplace.
However, there is also the point that, in practice, it will be difficult for a worker to establish that their employer was responsible for their infection and therefore liable to them where they contract COVID-19.
- Can an employer make an offer of employment conditional on an employee evidencing that they have been vaccinated?
Potentially, but until the vaccination programme has been rolled out further, this is likely to cause practical difficulties as many candidates will not yet have been offered the opportunity to be vaccinated. Further, proof of vaccination may also be an issue as it appears that not everyone who is vaccinated currently receives a vaccination card.
“Vaccination passports” may be introduced, which could be a route for businesses to restrict entry to workplaces. However, such a requirement is likely to cause delays in the recruitment process, may discourage otherwise suitable applicants from applying and is likely to be indirectly discriminatory to applicants with a number of characteristics protected by the Act.
- What actions should employers take now?
- Update its COVID Risk Assessment and audit the workforce. Identify issues and processes in the workplace which can be adapted to ensure that the workplace is COVID-secure. Identify any roles that can continue to be performed effectively from home, those which can continue to safely be performed with existing COVID-secure arrangements in place and whether there are any roles which may reasonably justify an employee having to have a vaccination in order to work safely.
- An employer should consider how it will manage employees whose role requires them to be vaccinated but who refuse to do so, remembering that cases will still need to be reviewed on an individual basis.
- Involve the workforce in considering the risk and identifying solutions and also ensure that all relevant stakeholders are involved including, if relevant, trade unions.
- Employers should adopt an internal communications strategy – providing clear information to employees on the vaccine programme may help encourage participation and will support any employees who may have doubts about the vaccination or may otherwise be unable to have it. Be prepared for individuals to have concerns about the new vaccine, especially in the early days. Employees should be signposted to sources of further information and support, both internal and external. Employers should make sure that external communications (such as to clients or in advertising) align with the internal messaging and that all messaging aligns with government guidance.
- Maintain safety measures that are already in place – the vaccination may not be available to all employees for a significant period of time and in any case, should be used alongside COVID-secure practices for the time being. Employers may want to remind employees to continue to abide by the COVID measures and not to relax their efforts despite the vaccine.
- Employers should consider its approach to third parties – identify what approach employers will take to visitors to their premises – will visitors be required to provide evidence that they have been vaccinated before they are allowed to enter the workplace? Employers must ensure that its approach to visitors does not undermine its approach for employees.
- Consider how medical records and other data protection issues will be managed – there will likely be changes to the medical information an employer will hold about its employees and therefore data protection policies, privacy notices and processes should be reviewed to ensure that they are fit for purpose. And employers must ensure that any data regarding the vaccine is handled in the way set out above, i.e. by a health professional and with care.
- Keep up-to-date on developments – the vaccination programme and its impact will evolve over the course of the next few months. Employers will need to be prepared to adapt their plans and approach in line with new developments.
The contents of this briefing are for information purposes only. All circumstances are unique and the information and opinions expressed in this document do not constitute legal advice and should not be regarded as a substitute for legal advice. No liability is accepted for the opinions contained or for any errors or omissions.