The government are well underway with their plan for mass immunisation against COVID-19. Initially, they aim to provide the vaccine to residents in care homes for older adults and their carers, followed by those over 80 years old as well as frontline health and social care workers. Then, as time goes on, the vaccine will become available to the rest of the population; in order of age and clinical risk factors.
The availability of a COVID-19 vaccine raises a number of questions for employers. In this article, we will look into the most common questions we have encountered on this topic.
Can we force an employee to have the vaccine?
As with any medical procedure, no matter the scale, individuals have autonomy. The Government have not legislated to make the COVID-19 vaccination mandatory, nor does it look like they will. Therefore, many employers are not likely to be able to force their employees to have the vaccination.
ACAS states that, “employers should support staff in getting the COVID-19 vaccine, but they cannot force staff to be vaccinated.” They further state that employers may find it useful to engage with their employees to discuss the vaccine and share the benefits of being vaccinated.
ACAS do recognise that employers in certain industries may decide that it is necessary for their staff to be vaccinated. However, they state that this should only be the case if getting the vaccine is required for someone to do their job, for example travelling to other countries for work. If an employer does make the decision that a vaccination is necessary, they should agree it with staff or the recognised trade union. This agreement should be documented.
Employers looking to force employees to have the vaccine in the majority of businesses, especially white collar, will find it difficult to argue that having the vaccine is necessary for staff to do their job. However, on the other hand, those who work on the frontline in a health care setting for example, are more likely to be exposed to COVID-19. In this scenario, it may be reasonable to instruct employees to have the vaccine.
Further, a requirement forcing an employee to take a vaccine would likely constitute an interference with the Article 8 right to respect for private and family life. Both employers and the Employment Tribunal would have to carefully consider whether that interference can be justified.
If an employer is considering making it a contractual requirement for an employee to have the vaccine, this would amount to a change in terms and conditions. Any contractual change would need to satisfy the usual considerations where a change to contractual terms is proposed. It is likely that many employees would object to this change. Without the employee’s agreement, the employer would have to look to make a unilateral imposition of the change, or termination and re-employment on the new terms. Both scenarios carry risks for the employer.
It is important to note that at the time of writing this article, the vaccine is not currently available to the wider population. Therefore, employers will find it difficult in any event to require employees to have the vaccine. What it does mean however, is that employers have time to think about their approach at this stage, and engage with their staff regarding the vaccine.
Can we dismiss an employee if they choose not to have the vaccine?
The common law duty to obey lawful and reasonable orders from an employer applies to all employees. Therefore, an employer could dismiss an employee for not following a reasonable instruction. However, if an employer has a contractual requirement to obtain the vaccine, it does not necessarily allow the employer to discipline or dismiss the employee if they fail to do so. Dismissal should be the absolute last resort. Likewise, the issue of whether the instruction was “reasonable” will need to be considered on a case by case basis. Should the employee claim unfair or constructive dismissal, it is likely that the Tribunal in many cases will be sympathetic towards the employee. As above, it is likely to come down to whether a vaccine is necessary for the employee to carry out their job. Consideration will also be given to the fact there is no legislation forcing individuals to have the vaccine.
ACAS guidance suggests that refusal to be vaccinated could, in some situations, result in a disciplinary procedure. Again, this would depend on whether vaccination was necessary for an employee to do their job.
Employees who believe that their employer is being unreasonable in making vaccination mandatory are advised to try and resolve the problem informally or raise a grievance if informal resolution is not possible.
An employer looking to dismiss an employee should consider any potential discrimination issues that may arise from this course of action. See the sub-heading below covering “discrimination considerations”.
Can we refuse an employee access to the workplace if they do not take the vaccine?
This is not advised. As we have stated above, the vaccine is not available to most of the population at this moment in time, therefore this would not be an appropriate provision to implement.
Now we have a vaccination, can we reduce other measures in the workplace?
At this stage, it would be premature and not advised to remove any measures in place to ensure the workplace is COVID-secure. The vaccine is not available to the mass population as yet, therefore it would risk infection and increased spread of the virus. That being said, even once the vaccine is rolled out, the efficacy remains to be seen. It is unlikely that the vaccine will be 100% effective. A percentage of the population will not accept the vaccination and there are people who, due to medical and other reasons cannot have it. Meaning, that some measures may have to remain in place. However, as the year progresses, the government is expected to release guidance on this topic.
The vaccine may not be suitable for all, for a number of reasons. For example, an employee may suffer from allergic reactions or they may have a suppressed immune system, so have been advised not to have the vaccine on health grounds. Another employee may refuse the vaccine as it may contain gelatine derived from pigs, which is common in mass-produced vaccines, they may therefore refuse it on religious or philosophical beliefs. The vaccine may also not be available for younger employees for some time. Another employee may be pregnant, pregnant women have been advised not to have the vaccine.
If an employer were to discipline or dismiss one of the aforementioned employee’s, they may face a claim for discrimination. In the above examples alone, the employer would have to be mindful of the following protected characteristics: (1) disability, (2) religion or belief, (3) age, and (4) pregnancy and maternity. Employers are therefore at risk of a claim for discrimination if they are looking to treat vaccinated employees differently compared to non-vaccinated employees, if their refusal is due to a protected characteristic.
Discrimination claims in the employment tribunal have no cap, meaning that if an employee’s claim is successful, the award may be significant.
Will the GDPR apply if we ask staff if they have been vaccinated?
If an employer is looking to keep a record of who has had a vaccine, this will constitute the processing of health data. Those employers will be required to comply with the GDPR rules on processing special category data.
Health data is classified as special category data. Meaning it is subject to a greater level of protection compared to ordinary personal data. Importantly, it raises the bar for legal processing as two grounds of processing are required; an employer must identify both a lawful basis under Article 6 of the UK GDPR and a separate condition for processing under Article 9.
In addition to Art.6 and Art.9 grounds an employer is required to have an appropriate policy document in place. If privacy notices were drafted prior to the COVID-19 pandemic, the employer should look to update it if they are proposing to collect data surrounding COVID-19.
Once the legal basis has been established, as above, the employer must consult and engage with the individuals and explain what they are collecting and why. Employers should ensure that they keep data processing to a minimum. A Data Protection Impact Assessment (“DPIA”) may assist. DPIA’s are used to assess the impact of data processing activities on the protection of personal data. It helps ensure that organisations consider the privacy by design requirements of the GDPR. The ICO’s guidance on workplace testing recommends that a DPIA is conducted before that testing is put in place.