There has been much debate as to whether employers can force employees to receive the COVID-19 vaccine.
What are the concerns that employers and employees have regarding the COVID-19 vaccine?
This blog aims to address the concerns that both employers and employees may have over the COVID-19 vaccine and the employment law implications.
Is it a legal requirement for people to get the COVID-19 vaccine?
With the exception of the (now revoked) legalisation impacting on the health and social care sector, the Government has not legislated for the COVID-19 vaccine to be mandatory. 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.
What about employees that work in the health or social care sectors?
On 15 March 2022, the Government revoked mandatory vaccination requirements for health and social care workers. The Government has withdrawn the requirement for registered persons of all Care Quality Commission (CQC) registered care homes to ensure that a person does not enter the indoor premises unless they have been vaccinated. This requirement had been in force since 11 November 2021.
The announcement also reversed the requirement for all healthcare workers to be fully vaccinated against COVID-19, which was due to take effect by April 2022.
These changes reflect the new Government strategy of “Living with Covid” and its consultation published in February 2022, which received over 90,000 responses, 90% of which supported revocation.
Is this likely to change again?
Given the emphasis from the Government on “Living with Covid” and the focus on returning to normality, it seems unlikely that the Government will introduce any further changes which require compulsory vaccination in any industry sectors.
The Government guidance outlines that the recent variant of Omicron is less severe and the percentage of those requiring emergency care or hospital admission is approximately half that of the Delta variant. It also cites the vaccination programme which has resulted in improved immunity in the population. Data from the UK Health Security Agency (UKHSA) shows that 5 to 9 weeks after getting a booster, you are at least 85% less likely to end up in hospital than if you are unvaccinated.
The Government has rolled out the spring booster vaccination programme to individuals aged 75 and over, those with vulnerable immune systems and care home residents.
Can employers encourage staff to be vaccinated?
Yes, it is very clear that employers can continue to encourage staff to be vaccinated.
There is some useful guidance published by the Government for employers on how to engage with staff.
ACAS also encourages employers to support staff by discussing the benefits of vaccination. It offers suggestions for practical support, for example, by offering staff paid time off to attend vaccination appointments or paying staff their usual rate of pay if they are off sick with vaccine side effects.
The Health and Social Care Secretary has reminded unvaccinated health and care workers of their professional responsibility to be vaccinated. The Government has specifically recommended vaccination for the following individuals:
- Adults living or working in a care home for the elderly
- Frontline healthcare workers
- Frontline social care workers
- Carers working in domiciliary care looking after older adults
- Those aged 65 years and over
- In the first phase of the vaccine roll-out, younger adults with long-term clinical conditions
- Adults previously classed as clinically extremely vulnerable (CEV)
Can an employer dismiss an employee who refuses to take the vaccination?
As a starting point, in the absence of vaccination being a legal requirement, an employer cannot 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 if the individual has raised an objection which is related to a protected characteristic (e.g. 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. In addition, a requirement for an employee to be vaccinated as a condition of receiving work could potentially amount to a repudiatory breach of contract giving rise to a constructive unfair dismissal claim.
The approach to be taken by employers will require careful analysis on a case by case basis depending on the specific circumstances. If an employee is refusing to be vaccinated and is also refusing to come into the workplace, an employer should firstly consider alternatives such as a change of role, regular testing or 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 immediately dismiss them. An employer should thoroughly consider an individual’s reasons for refusing to take the vaccine before making any decisions.
If an employer proceeded to dismiss an employee that was not vaccinated, a tribunal would need to consider whether this decision was fair in the circumstances. Amongst other factors, it is likely to consider current evidence which shows that the Omicron variant is much milder. For example, the Department of Health and Social Care has published that, as the risks of the Omicron variant are now known and not as serious as anticipated, the mandatory vaccination requirement is no longer proportionate. It would also consider evidence showing that individuals that test positive are far less likely to be admitted as seriously ill to hospital.
Employers that have implemented mandatory vaccination policies should carefully consider their rationale and justification for such requirements. In April 2021, the Equality and Human Rights Commission warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone as well as the discrimination risks.
What does this mean for employees that are ‘extremely clinically vulnerable’?
People at high risk (previously stated to be “clinically extremely vulnerable”) from COVID-19 are no longer advised to stay at home and “shield”. However, individuals that were identified as high risk may remain cautious about returning to the workplace.
There are several options available to employers where high risk employees are not comfortable with going to work. They could consider suspending the employee 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 where businesses have returned to their normal workload.
Employers should be aware that employees have statutory rights, which provide them with 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. Given the success of the vaccine scheme and mildness of the current variant, the belief may now be less likely to be reasonable.
Employers should take all appropriate steps to make their workplace COVID-19 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 ‘Living with Coronavirus”
How should employers gather and use vaccine data?
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.
In light of the relaxation of Government measures, the Information Commissioner’s Office has published updated guidance setting out the key things organisations need to consider around the use of personal information.
Employers may be able to justify asking employees to confirm whether or not they have been vaccinated in some circumstances. However, this information should 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 contacts with others, rather than the vaccination status of others.
If you have any further questions relating to the effect of the vaccine on employment law, please contact a member of the Employment team.