COVID-19 Vaccinations – can you enforce ‘no jab, no job’?

As the vaccination rollout in the UK progresses, and more staff return to their workplaces as lockdown restrictions ease, there has been much debate in recent weeks about whether employers can require their staff to have a COVID-19 vaccine. In the wake of a pandemic which has cost many thousands of lives in this country, as well as leaving thousands of others with long term health and social issues, emotions will run high in workplaces about taking up the vaccine. Many people will consider that the threat to health posed by COVID-19 justifies a policy of requiring everyone to have a vaccine as soon as it is available to them, despite the potential conflict with human rights and personal choice.

The law in England and Wales does not currently mandate vaccinations for COVID-19 (although the UK Government is currently consulting on mandating vaccinations for workers operating in the care sector). Consequently, employers will need to formulate their own approach to the question of whether they wish to compel staff to have a vaccine. Employers should note that the law in this area is evolving and that we are some way off a full understanding of how Employment Tribunals may treat this issue, particularly since it involves potentially instructing an employee to undergo a medical procedure.

In the meantime, here’s a practical guide to considerations for the current situation – we’ll aim to publish updates as they emerge.

  • Employers have a legal duty to protect the health and safety of their employees by providing them with a safe place and system of work. They should therefore carry out risk assessments and implement a safe working policy which factors in the Government’s sector-specific social distancing guidance. These should be kept under review.
  • Employees themselves are also required to take reasonable care for their own health and safety, as well as that of colleagues, and to cooperate with their employers to enable them to comply with their duties. Employees can also be required to comply with reasonable management instructions relating to health and safety.
  • As part of their risk assessment, employers will need to carefully review the requirements of their business when deciding what measures to put in place. If considering whether to mandate vaccination, employers will need to consult with employees about the change to their terms and conditions of employment and weigh up the business’ requirements against the rights of individual staff.
  • If an employee refuses a vaccine, the employer must find out why they are refusing before potentially taking action.
  • Employers must be particularly careful not to discriminate against employees, for example younger employees who have not yet been offered the vaccine, which could amount to age discrimination, or those who have a legitimate health reason for refusing, which could potentially amount to disability or pregnancy discrimination. Employers should also be mindful not to discriminate against someone’s particular belief, although this might be a difficult argument to run.
  • Employees’ human rights are also a consideration and employment tribunals may well be the United Kingdom is still a signatory to the European Convention on Human Rights and the Human Rights Act 1998 remains in place.
  • Employers should also be wary of the data protection implications of requiring employees to disclose their vaccination status since medical data is a special category of data which requires specific consent and extra processing precautions. A Data Protection Impact Assessment should be carried out, data collected should be limited and kept and only for as long as necessary, and employees should be informed of the reasons for collecting this data and how and how long it will be stored for.
  • Dismissal of an employee for refusing to be vaccinated should be a last resort and alternatives should be considered first. Aside from the risk of a discrimination claim, employers should be aware of the risk of an unfair dismissal claim from employees with over 2 years’ service. Whether it is fair to dismiss an employee for refusing a vaccine will depend on whether it is reasonable in the specific context and employers are likely to have to work hard to justify such a dismissal outside of a healthcare or similar setting.

 

If you would like further advice tailored to your particular circumstances, please contact us.