COVID-19 – Can, or should, employers insist on employees being vaccinated?
As vaccinations become more widely available we are all faced with the decision of whether to take the coronavirus vaccination or not.
The vaccine is a means of protecting the health and safety of staff because it could help make the workplace more secure and give employees, customers or clients more confidence about a return to work and a return to a more normal way of doing business.
However, employers should be mindful of certain risks when considering their position on vaccination.
This is because the Government has not made vaccination mandatory and this is likely to make it difficult for employers to compel an existing employee to take the vaccine. ACAS has advised that “Employers should support staff in getting the vaccine, but they cannot force staff to be vaccinated”.
The UK justice minister Robert Buckland recently speculated that it may be legal for some companies to insist on new employees being vaccinated as a condition of their employment. In the UK some employers, including care homes and social care providers, are adopting “no jab, no job” policies for new employees. This remains controversial but could be justified where there is a very clear rationale for such an approach.
Employers are advised to consider discrimination in employment when adopting any COVID-19 policy regarding mandatory vaccination and whether a policy could disproportionately impact particular employees. There are several reasons why an employee might not have the vaccine, which could be linked to a protected characteristic under the Equality Act 2010. Some examples are these.
- Pregnancy or sex: pregnant women have been advised not take the vaccine until more testing has been carried out.
- Religion or belief: some religions reject medicines on theological grounds.
- Disability: an individual may be unable to take the vaccine due to underlying health issues.
- Age: younger employees are unlikely to receive the vaccine until the last phase of immunisation.
Given the risks, employers should be wary of treating individuals who have not taken the vaccine unfavourably in terms of remuneration, promotion or disciplinary action. Unfavourable treatment of these employees could give rise to a discrimination claim and it is easy to see from the above examples how enforcing a policy of mandatory vaccinations, when this is not advocated by the Government, could also quickly lead to difficulties under discrimination laws.
Breach of trust and confidence?
Employers should be aware of their implied duty of trust and confidence. Applying undue pressure on employees to take the vaccine could risk breaching this and result in potential claims for constructive unfair dismissal. This will depend on the circumstances in any given case but again, if the Government is not putting pressure on the population to take the vaccine, we do not see how it would be a reasonable position for an employer to adopt, to compel employees or workers take the vaccine.
There are privacy concerns about employers processing health-related data. Information about whether an employee has been vaccinated will be special category data under the GDPR. The important issue will be whether the processing of such data is “necessary and proportionate”.
Communication with staff about the importance of being vaccinated will be key. We anticipate that employers will want to encourage take up of the vaccine, for example, by allowing employees paid time off for appointments. Employers should seek to understand reasons for refusal to see if any concerns can be alleviated.
It is sensible to start thinking about future business planning, remembering that on-going consultation with employees will be invaluable.