All adults have now been offered the COVID-19 vaccine. The swift progress of administering vaccines has led to topical discussion about whether employers can force employees to receive the vaccine. Recent headlines of “no jab no job” and the introduction of specific rules for the care sector have increased this debate.
This blog aims to address the concerns that both employers and employees may have over the vaccine and the employment law implications.
With the exception of certain staff working within the health and care sectors (see below) the Government has not legislated for the COVID-19 vaccine to be mandatory for anyone. The Government guidelines on vaccinations say that individuals must be given enough information to enable them to make a decision before they can give consent.
By law, the Public Health (Control of Disease) Act 1984 gives the Government the power to prevent and control an infection. However, the legislation specifically prevents a person from being required to undertake medical treatments such as vaccinations. Accordingly, further primary legislation would need to be introduced in order to legally mandate a COVID-19 vaccination.
Whilst employers can certainly encourage their staff to receive the vaccine, vaccinations are voluntary.
Compulsory vaccinations in order to attend work became mandatory for those working in care homes from 11 November 2021. Following announcements on 9 November 2021, a new compulsory requirement for front line NHS staff to be vaccinated will also take effect in April 2022. Employers within the care or healthcare sector can find further information on this requirement in our recent blogs on this topic:
Employers can certainly encourage their staff to receive the vaccine and Acas has released guidance on getting the vaccination for work which contains useful guidance. This encourages employers to support staff by discussing the benefits of vaccination. It also offers suggestions for practical support, for example, by offering paid time off to attend vaccination appointments or paying staff their usual rate of pay if they’re off sick with vaccine side effects.
However, not every worker will want to be vaccinated and this is a controversial topic that many employers are navigating. The government has identified that this is a “complex” topic and there are a variety of reasons as to why an employee may be reluctant to receive the vaccine, which will need to be reviewed on a case by case basis.
A key question that is arising is whether it is ethical and legal for employers to request staff to be vaccinated before they return to the workplace, particularly when some will refuse for religious, philosophical or health care reasons.
As a starting point, in the absence of vaccination becoming a legal requirement, an employer cannot currently force an employee to be vaccinated without their consent.
An employer who requires employees to receive a vaccination could potentially be open to the risk of a discrimination claim on the grounds of disability, age, religion or belief. In addition, if an employer were to dismiss an employee for the reason of refusing to take a vaccine, they may be opening themselves up to an unfair dismissal claim, assuming that the employee has at least 2 years of service.
An employer may dismiss an employee who refuses to comply with a reasonable management request. Therefore, if it is considered that taking the vaccine is a reasonable management request, an employee may be able to be dismissed for refusing to comply.
This will require careful analysis on a case by case basis and will depend on the specific circumstances. If an employee is refusing to take a vaccination and is also refusing to come into the workplace, an employer should firstly consider alternatives such as change of role, regular testing or permanently working from home. Where contact with customers, clients or other employees is necessary, steps may need to be taken when employees are refusing to come into work.
However, if an employee is refusing to take the vaccine for legitimate reasons and is still happy to come into work, an employer would be ill-advised to dismiss them. An employer should thoroughly consider an individual’s reasons for refusing to take the vaccine before making any decisions.
Whether an employee can be dismissed for this reason would depend on whether the employee’s refusal to comply with the request is reasonable or not. Whether this is a reasonable request will involve a consideration of where the employee works. For example, UK healthcare employers must ensure that their employees do not present a risk of infection to patients, so may have a stronger defence to an unfair dismissal claim. However, as mentioned above, employers will have to be aware of the possibility of opening themselves to the risk of discrimination or unfair dismissal claims by insisting on their staff having a vaccine. This could also give rise to human rights issues.
In the current situation, where the Government has only extended compulsory vaccinations to those working within care homes, employers outside of the care sector are likely to find it difficult to justify dismissal for employees who are ready and willing to work, but who have chosen not to have the vaccine.
People at high risk (clinically extremely vulnerable) from Coronavirus are no longer advised to stay at home and “shield”.
There are a range of options available to employers where high-risk employees are not comfortable with going to work. Whilst the furlough scheme has now concluded, options include suspending on full pay, allowing employees to take annual or unpaid leave and sick leave. However, as time goes on these options may be less commercially viable, in particular when businesses return to their normal workload.
Employers should also be aware that employees have statutory rights meaning that they have protection from any detriment or dismissal when they have decided not to return to work, because there are circumstances of danger where the employee reasonably believes this danger is serious or imminent. The belief must be genuine and reasonable; therefore, once the vaccine has been fully introduced, the belief will likely become less reasonable.
As stated above, an employer may consider taking disciplinary action against an employee who refuses to take a vaccine and also refuses to return to work, on the basis that it is a breach of an employer’s reasonable instruction. In order to proceed, employers should take all appropriate steps to make their workplace COVID secure. This option may be more appropriate where employees who are not clinically vulnerable are refusing to return to work as these employees are, arguably, less likely to prove a reasonable belief in an ongoing and serious imminent danger.
Employers should consult with their employees to understand their concerns and discuss how risks will be managed. Employers should also carry out a proper risk assessment and take the appropriate steps to mitigate these risks. For further information, please see our blog ‘Changes to “shielding” – the implications for employers’.
On 16 April 2021, the Joint Committee on Vaccination and Immunisation (JCVI) issued a press release for pregnant women advising that pregnant women should be offered the vaccine at the same time as the rest of the population, based on their age and clinical risk group. Based on the tested data available, the JCVI advise that it is preferable that pregnant women are offered the Pfizer-BioNTech and Moderna vaccines where available.
There is still no data on the safety of COVID-19 vaccines for breastfeeding women (or their child). However, the government does not consider COVID-19 vaccines a risk to the breastfeeding infant and the JCVI has recommended that breastfeeding women can receive the vaccine. This is in line with recommendations in the US and from the World Health Organisation. There is no specific guidance for women trying to conceive.
Despite this new guidance, it is likely that some pregnant employees will have concerns about receiving the vaccine and employers should therefore proceed with caution. Employers should continue to consider alternative arrangements or adjustments that may need to be made on a case by case basis. For instance, this could include allowing a pregnant employee to work from home. Employers should also ensure that they carry out a specific risk assessment and helpful further guidance can be found on the Health and Safety Executive website and the government’s website offering guidance for women of childbearing age, currently pregnant or breastfeeding.
Whilst there was previously a proposal for vaccine passports, in September 2021 the Government announced that the plan to introduce passports for entry to night clubs and similar venues would not proceed. The Government has said that this proposal will be kept “in reserve” should it be needed.
Since 16 August 2021, individuals who have been fully vaccinated are no longer required to self-isolate unless they have personally tested positive for COVID-19. Individuals can use the NHS app to demonstrate their vaccine status if required. Employers therefore may need to ascertain whether or not an employee has been vaccinated in order to assess the rules that apply.
Employers have to be mindful of both their general obligations to employees under their contracts of employment and their specific obligations in relation to data protection. A person’s vaccination status is classed as special category data – it is their private health information. In order to comply with the data protection requirements, an employer’s use of this data must be fair, relevant and necessary for a specific purpose.
Employers may be able to justify asking employees to confirm whether or not they have been vaccinated in some circumstances, for example for the purpose of identifying whether the employee is required to self-isolate after coming into contact with a positive case of COVID-19, or where their work means they could post a risk to a clinically vulnerable individual. However this information should then only be used as that employee would reasonably expect and should not result in any unfair or unjustified treatment of employees. This information should be kept secure and should be limited to those that reasonably need to know the information, for example those in HR or the employee’s line manager.
It is difficult to see a circumstance where an employer could justify sharing a specific individual’s vaccine status with other employees.
Employers may face a difficult situation if an employee raises concerns about their health and safety because they believe a fellow employee has not been vaccinated, particularly if the concerned employee is clinically vulnerable. In that situation their employer should consult with them to understand their concerns and carry out a risk assessment. Whilst information held by the employer on the vaccination status of other employees could potentially inform this risk assessment, personal information relating to another employee should not be disclosed by the employer. The employer’s focus should instead be addressing the employee’s individual concerns to ensure they feel adequately protected at work, for example looking at alternative working areas or arrangements to reduce their contact with others, rather than the vaccination status of others.
Employers must continue to strike a delicate balance between encouraging vaccination and protecting the health and safety of employees, and ensuring that employees are not unfairly penalised for refusing to take a vaccination or providing related information.
If you have any further questions relating to the effect of the vaccine on employment law, please contact a member of the Employment team.