Through the government’s roadmap for the easing national restrictions and the success of the initial roll-out of vaccines, many of us may be wondering if there is finally light at the end of the tunnel.
But, the vaccine roll-out is generating a number of queries and concerns from employers within the social sector, including whether employees can be compelled to have the vaccine and whether employers can retain data on which employees are vaccinated and which aren’t. These questions are also being played out in the press with recent headlines such as “No jab, no job” adding to confusion.
Can an employer compel employees to have the COVID-19 vaccination?
The vaccine is not mandatory within the UK and under existing employment and human rights legislation you cannot compel or force an employee to have a vaccination.
Under the Health and Safety at Work Act 1974, employers do have a duty to provide a healthy and safe workplace. However, it’s unlikely this would extend to a requirement for all employees to have the vaccine, particularly where the Government still requires additional measures to be taken such as social distancing, the wearing of masks etc.
There may be different reasons why employees may decide not to have the vaccination, one of these may be “vaccine hesitancy”, where an individual may have concerns such as the newness of the vaccines, no long-term data on side effects etc.
To tackle vaccine hesitancy you could consider a communication programme to encourage the take –up of the vaccine. The NHS has produced guidance in respect of the vaccine to which it may be helpful to signpost your employees: https://www.nhs.uk/conditions/coronavirus-covid-19/coronavirus-vaccination/coronavirus-vaccine/.
You could also consider implementing a COVID-19 Vaccination Policy setting out how you could make the vaccination process easy for employees to access, such as time off for vaccination appointments.
What if an employee refuses the COVID-19 vaccine?
If employees refuse the vaccine, you will likely have to look at this on a case by case basis as there may be different reasons for refusing the vaccine. Whilst vaccine hesitancy is not a protected characteristic under the Equality Act there may be other reasons that could potentially be protected characteristics, including:
- If an employee is unable to have a vaccination due to medical reasons, disability, pregnancy
- If employees refuse to have the vaccination on religious beliefs
- Some employees may take an anti-vaxx stance claiming this is a philosophical belief (which has not yet been tested through the courts).
Could an employer dismiss an employee who refused to be vaccinated?
If you believe the role your employee is doing is putting others at risk by them not having the vaccine, we would advise that there are initial steps with regards to health and safety to make the workplace safe for such employees, their colleagues and service users prior to any consideration of dismissal; for example reinforcing your COVID-19 secure working environment, facilitating remote working where possible, or redeploying to another role where the employee is not dealing with service users (if such a role were available).
Should an employer consider dismissal (once the initial steps above have been exhausted) there are various degrees of risk:
- Employees who maintain that their non-vaccination is on the grounds of a protected characteristic could potentially claim discrimination. With some claims (e.g. indirect disability discrimination) it may be that the employer could justify that a dismissal was reasonable if the employer has good reason for the workforce to need to be vaccinated (employers such as NHS, care homes etc may seek to allege the decision to dismiss is a reasonable one based on the risk of infecting patients). This could only be decided by an employment tribunal and it’s likely that such cases won’t reach tribunal for a further 12 months or so, we will not know for sure if this is a reasonable defence for some employers for a while yet.
- For those with less than 2 years’ service and with no potential claim of discrimination the risk would be minimal as they do not have sufficient length of service to claim unfair dismissal. In this situation we would still advise employers that they take the initial steps outlined above to look to allow the employment to continue. If that is not possible, or those steps are exhausted we advise a fair dismissal process is followed and that the employee is dismissed with notice.
- For employees with over 2 years’ service there is risk of claims of unfair dismissal. Again, this is unlikely to be tested through the courts for a further 12 months or so, but indications from legal advisors at this stage are that the risk of a dismissal of this nature being considered unfair is fairly high. An exception may be health and social care employers such as NHS or care homes, but again, this will be for the courts to determine. If a claim of unfair dismissal were successful the employee could be awarded up to 1 year’s pay plus the basic award.
Some employers are considering inserting a clause into their contracts of employment, new starters contractually to have the vaccination. However, even if an employee agree to the vaccination in their contract, the clause would not be enforceable as an individual’s informed consent would always be required for any medical intervention.
Can an employer keep records on who has been vaccinated?
An employer can ask if employees have or have not been vaccinated but they would need to have identified a lawful reason for asking and retaining that information. Information in respect of vaccinations would be considered special category data so employers who choose to keep records should ensure that this is in compliance with the General Data Protection Regulations and Data Protection Act (2018).
We recommend that a data protection impact assessment is undertaken before any data of this nature is processed and any privacy notices for employees should be reviewed and, where required, updated.
Still have queries?
We are happy to talk to you the approach your organisation could take and / or provide you with details and costs of our COVID-19 Vaccine Policy. Please do ring us on 01562 840060 or email email@example.com for further information and support.
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