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Published 10 March 2021
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Vaccinations and your employees, where do you stand?

The vaccine programme continues apace, and the easing of lockdown and return to something approaching normality has been clearly signposted by the Government. But where does that leave employers when it comes to the vaccination of their employees?

The UK government has made it clear it is not making vaccination mandatory for UK residents, but can you, as an employer, insist all your employees are vaccinated before they can return to work?

As always, the answer isn’t entirely black and white, and this is undoubtedly going to be a challenging area for many employers. In this post, I’m going to look at the main areas you need to have in mind as you plan the return to the workplace for your employees.

Freedom of choice and human rights

Although a number of big employers have expressed an intention or desire to make employee vaccination compulsory, we simply don’t know whether, outside the health sector, employers can legally do so. This is new territory and it’s untested in the UK courts and tribunals. And that in itself signifies the need for caution.

The prevailing view at the moment is that compulsory vaccination as a condition of returning to work will very rarely be appropriate. After all, in the UK, a vaccination requires an individual’s informed and voluntary consent.

There is also an inherent risk that for public sector employers such a move could constitute a breach of an employee’s Human Rights. A blanket policy in respect of all employees will also rarely be appropriate.

Risk assessment

That said, it may be appropriate for some employers to assess whether mandatory vaccination is the only reasonable and proportionate way of ensuring a safe working environment and protecting employees against risk.

Factors to be taken into account will be whether there are any other measures that can be put in place that will adequately protect employees – such as social distancing, improved hygiene, and ventilation, the amount of contact employees will have with members of the public (particularly those that are vulnerable) or for example, staggered working hours so that limited numbers of staff are in the same building at any time. Undoubtedly, many employers reviewed their Health and Safety provisions at the start of the pandemic, but this needs to be a continuing process that takes account of all developments in this pandemic and the recovery from it. 

Discrimination

Another significant difficulty with imposing mandatory vaccination is that an employee may have a good reason for being reluctant to get the vaccine. Some reasons may also amount to a protected characteristic under the Equality Act 2010. You’ll recall the protected characteristic are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Examples

So, for example, an employee may be pregnant or hoping to get pregnant, and they may not wish to discuss this yet. There may be religious reasons for refusing the vaccine such as concerns about its content or alternatively, an employee with fervently held and genuine anti-vaccination beliefs could be found to be entitled to protection by way of a protected philosophical belief.

Clearly, if an employee who has refused the vaccine due to a protected characteristic is then either treated differently or faces disciplinary proceedings, there’s a significant risk that the employer could find themselves facing a claim for discrimination. This applies equally to an act of indirect discrimination, such as refusing access to certain parts of a building or refusing overtime to employees who haven’t been vaccinated.

Resisting pressure 

One particularly complex area is likely to be what happens at public spaces like airports and shopping centres, where members of the public may be required to show they’ve been vaccinated before they enter. Employers with staff based at such sites may be put under pressure from the site owners to ensure employees working on-site are also vaccinated. Care and discussion will be needed to ensure that in complying with the site owner conditions, employers don’t find themselves inadvertently guilty of discrimination.

Contractual rights

Finally. requiring compulsory vaccination may arguably amount to a significant change in the terms and conditions of employee contracts which in turn will require employee consent. This brings with it the risk of constructive dismal or unfair dismissal claims, where consent is not given or alternatively, it will give rise to the need to bring to an end the old contracts and reissue new ones if the employee does consent.

For employers with large numbers of employees, such changes in the terms and conditions may also trigger the obligation to inform and consult with Trade Unions. But the Trade Union of Congress has already taken the view that mandatory COVID-19 vaccinations should not be enforced in the workplace and should not be linked to staff contracts or pay.

Policy

Before the return to the workplace, most employers, therefore, need to decide a suitable vaccination policy, to be agreed if possible, with Trade Unions or employee representatives. These are the main areas you’ll need to consider:

Communication with your employees

Good practice dictates that you should encourage and support employees to get the vaccine. The first step towards this is communicating with your employees, explaining your support for the vaccine programme and both the benefits and disadvantages. It may be useful to provide them with the latest health information from the Government. Consider how you can communicate this in a way that all your employees will find accessible and easy to understand but be careful not to cross the line and put pressure on your employees.  

Ensure the vaccine is accessible

Part of your vaccine policy should include how you’re going to help employees access the vaccine. For example, will you provide paid time off work to get the vaccine, and in the event of sickness due to side effects, will you offer normal rates of pay rather than statutory sick pay? Employers should also consider policies that protect non-vaccinated staff in the future.

Data protection

If it’s your intention to collect information about your staff vaccination, careful consideration needs to be given to ensure this complies with GDPR. You will also need to explain this clearly to your employees.

Get in touch

As new territory, we’re expecting there to be rapid developments in this area of employee vaccination. With some large employers already indicating they intend to make vaccination compulsory, we can expect litigation and possibly even further government intervention. Even for those employers not considering mandatory vaccination, it’s essential to have an appropriate policy in place which should be kept under regular review.

If you would like to speak to our expert employment solicitor, Nighat Sahi, please telephone us on 020 3146 2989, email us at nighat@rswlawltd.co.uk or fill in our contact form.

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