COVID-19 Vaccination – can an employer make it compulsory for employees?
Whether an employer can (or should) make it mandatory for employees to have the COVID-19 vaccine is far from straightforward. There are many factors to consider alongside the legal points highlighted below. In addition, the nature of the pandemic is continually changing and Government advice is being updated as more scientific data on vaccination is published. To some extent this is, therefore, a moveable feast and employers should keep a close eye on any announced change to Government guidance or legal requirements.
Although the Government has not yet legislated to introduce mandatory vaccinations in any workplace, and its current position is to strongly recommend and encourage vaccination, this is set to change in relation to care homes in England. On 16 June BEIS published its response to a consultation on whether to make vaccinations a requirement for those working in older adult care homes. It confirmed that vaccinations will become mandatory for care home staff, volunteers and anyone else entering the care home for work purposes (subject to certain exemptions). Within its response the Government has also stated that there will be a consultation “in the coming weeks” on making COVID-19 and flu vaccination a condition of deployment in healthcare and the wider social care sector. It has also been reported that the Government planned to open a consultation on requiring COVID-19 vaccination a condition of employment for health service workers. There is nothing currently proposed for other sectors. However, some employers have publicly stated that they are following a “no jab, no job” policy.
The Government has, however, recently provided Guidance for employers on vaccination which urges employers to encourage their employees to get vaccinated. It includes an Employer’s Communication Toolkit to help employers share information on the facts around vaccination. The guidance also recommends that employers consider allowing workers to take time off to be vaccinated and that they review sick leave policies and procedures to ensure that they do not dis-incentivise workers from getting vaccinated.
The Government also carried out a review into whether to introduce COVID status certification and the role it could play in reducing restrictions on social contact and improving safety. On 5 July 2021 it confirmed it has decided not to make this mandatory at the present time. However, as it is possible that certification could provide a means of keeping businesses and events going if the situation worsens in Autumn or Winter, the Government is keeping the wider application of certification under consideration. The review states that it is open to businesses to require visitors to provide COVID status certification as long as they comply with their legal obligations including equality law. The Equality and Human Rights Commission has expressed concern that this could lead to a two-tier society which could discriminate against marginalised groups where the take-up of the vaccine is lower, as well as those who cannot be vaccinated for medical reasons. The review recognises that there are some settings such as essential public services, essential shops and public transport where certification should never be required.
In the meantime, it should not be forgotten that although vaccination is being recommended as a safe and effective way of reducing the chances of suffering from COVID-19, the data on whether it prevents transmission is still being examined and vaccination is not currently regarded a substitute for workplace COVID-secure measures which must still be complied with. Government advice remains that everyone, including those who have been vaccinated, should follow social distancing guidance and must also follow the current guidance on testing and self-isolation if they develop COVID-19 symptoms.
If an employer is considering whether to make vaccination compulsory, it will need to take into account and be aware of the legal issues outlined below.
- Health and safety
Employers have legal obligations to take reasonable care and reasonable steps to ensure the safety of their employees at work, and to provide a safe place and system of work. This includes safety in respect of COVID-19.
The nature of some workplaces may mean that vaccination as a precondition of work in some roles could potentially be justified on health and safety grounds. As mentioned, the Government is planning to introduce legislation to make vaccination compulsory for workers in older care homes. However, vaccination must be a proportionate way to address risk in view of potential discrimination and human rights arguments (see below). Employers considering a mandatory vaccination requirement would need to undertake a detailed risk assessment as to why this is required in addition to compliance with COVID-secure guidelines and consult with workplace representatives or trade unions and staff.
- Unfair dismissal
Any dismissals for refusing to be vaccinated may result in unfair dismissal claims from employees who have two years’ service. An employer would have to identify and satisfy itself as to the potentially fair reason for dismissal. In the absence of an express contractual right to require vaccination, that reason is likely to be “some other substantial reason.” The employer would have to balance the rationale, business, and health and safety requirements against the impact upon the individual and reasons for that person’s refusal.
There are a number of potential issues under anti-discrimination legislation if a blanket policy requiring mandatory vaccination is introduced and/or employees are dismissed or subjected to any other detriment for refusing to be vaccinated.
A requirement for vaccination is likely to indirectly discriminate against people with certain protected characteristics:
Religion or belief: Employees may have religion or belief-based grounds for refusal, for example, if the vaccine is made from animal products, or where a vaccine’s development has involved animal products or testing. Surveys have shown that a proportion of the population are not intending to take up the vaccine and therefore one issue is whether the “anti-vaxxer” beliefs of those opposed to vaccination are protected as being a philosophical belief. They would need to demonstrate that their beliefs are genuinely held, concern a weighty and substantial aspect of human life, are cogent, worthy of respect in a democratic society and are not in conflict with the fundamental rights of others.
Disability: If an employee has a disability which makes it difficult or dangerous for them to be vaccinated, then the implementation of a vaccination policy could give rise to a claim of disability discrimination.
Sex, pregnancy and maternity: Although the Joint Committee on Vaccinations and Immunisations (JCVI) recently advised pregnant women should be offered the vaccine in line with their age and clinical risk group, as there have been no specific safety concerns so far, more research is still needed. The JCVI has also advised that breastfeeding women can receive the vaccine although there is no specific data on this. Pregnant employees, those who are trying to conceive and those who have recently given birth may still be concerned about vaccination. There are therefore potential sex, pregnancy and maternity discrimination issues to consider.
Age: Although the Government’s programme is well advanced and they are currently offering vaccination to younger members of society there is still a risk that a particular age group might be able to argue that they would be disadvantaged compared to others if they are required to be vaccinated to attend work. Therefore, in some circumstances, a mandatory vaccination requirement could amount to discrimination on grounds of age.
Race: Recent research has shown that there are marked differences between different ethnic groups in willingness to receive the COVID-19 vaccine. Therefore there will be potential race discrimination issues to consider by employers who want to mandate the vaccine. The Government is taking steps to address vaccine concerns through a new Vaccination Equalities Committee in an effort to understand and find ways of overcoming specific barriers facing different communities.
Indirect discrimination will be unlawful unless the employer can justify any mandatory vaccination requirement as a proportionate means of achieving a legitimate aim. Although a legitimate aim may be fairly easy to establish e.g. protecting health and safety of staff, proportionality may be more difficult particularly as on the current evidence there are less invasive ways of minimising risk.
Even if an employer is not making a vaccination mandatory, it should ensure that its workplace policies do not indirectly discriminate against unvaccinated employees.
There is also the risk of claims of direct discrimination in requiring a particular employee to be vaccinated or by treating them less favourably because they are unvaccinated. It is not possible to justify direct discrimination unless it is on the ground of age.
- Human Rights
It is arguable that making vaccination a requirement is an unnecessary invasion of a person’s right to privacy under Article 8 of the European Convention on Human Rights, particularly where there are less invasive ways to minimise the risk of transmission. Employees who refuse to be vaccinated because of their religion or beliefs may also be able to rely on Article 9.
- Reputational harm
The issue of mandatory vaccination is controversial. Employers should not ignore the potential reputational harm which could arise from making vaccination mandatory and it should consult over its approach to seek to explain the underlying reasons and seek consensus. Adopting a mandatory vaccination policy may also affect recruitment and staff retention, depending on how the policy compares with other employers and how public opinion develops in this area.
- Data protection
If an employer wants to know whether an employee has had a vaccine it will need to comply with data protection legislation as information about an individual’s vaccination status will be special category personal data. This has strict protection under data protection law and there are data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy and retaining that data. In essence, an employer may be able to rely on a health and safety reason to justify the collection of such data but it would be prudent to first carry out a data protection impact assessment and also to adopt a policy that clearly states the reasons for the processing. Such a policy should also state that the data will be held secure, confidential and state whether there is any intention for it to be sent to a third party. The Information Commission has recently produced guidance in this area.
Contractual requirement for vaccination
It is unlikely that any current employment contracts include a requirement to accept vaccination. Therefore, if an employer wants to introduce this for existing employees, it will need to satisfy the usual legal considerations where a change to contract terms is proposed. It will need employees’ agreement and, if that is not forthcoming, the employer is faced with either unilaterally imposing the change, or terminating and offering re-engagement on the new terms. Neither option is particularly attractive and carry significant risks including to reputation as well as the potential human rights and discrimination issues outlined above.
An alternative to a contractual requirement is to introduce a vaccination policy with the aim being to encourage and support employees in getting the vaccine where it is offered. This is the approach recommended by ACAS guidance. If an employer wants to put in place a policy it should do so in consultation with its health and safety representatives and staff.
The policy should cover matters such as whether the employer will offer paid time off for vaccination appointments, whether it will pay normal pay rather than SSP if they are off sick with vaccine side effects and not counting vaccine-related absences in absence records or towards any “trigger” system for absence.
Acas guidance recommends talking with staff, sharing the benefits of being vaccinated, informing them on whether the employer intends to collect data on staff vaccinations and if so, how this will follow data protection law and whether anyone needs to be vaccinated to do their job e.g. healthcare workers. It recommends that employers listen to concerns expressed by employees who do not want to be vaccinated. This is important because they may have health reasons and employers should be sensitive to personal situations.
Given the evolving situation, implementing mandatory vaccination requirements for employees and job applicants remains an untested and potentially risky strategy from an employment law perspective. If employers are contemplating introducing such a policy, they should ensure that as best as they can, they justify it with a risk assessment and that they engage with staff and their representatives ahead of its introduction.
We will keep you informed of the latest information and recommendations from the Government and public health authorities and keep you informed of any latest advice and guidance.
For more information, please contact Nick Hurley or your usual Charles Russell Speechlys contact in the Employment team.