As the largest vaccination programme in British history is gathering pace the UK is almost daring to breathe a sigh of relief. However, whilst there is excitement and relief, there is also anxiety and concern about the vaccine.
As the vaccination programme works down the age groups and begins to hit those of working age there will be considerations to be made in the workplace that have never been addressed – and don’t appear in any staff handbook – not through negligence but simply because they have never needed to be.
So, what are your rights as an employee and what line should employers be taking?
Employee coronavirus vaccine FAQs
Can my employer make me get a COVID-19 vaccination?
No. Your employer cannot physically compel you to have the vaccine for many reasons, not least interference with Article 8 of the Human Rights Act (the right to respect for private and family life) and physically jabbing the vaccine into your arm without your consent would be battery, which is a criminal offence.
Can I be dismissed for not getting the vaccine?
Yes, although this does not necessarily mean that your dismissal will be fair. There are no “employment police” who can stop an employer from dismissing an employee. However, employees who are dismissed for not getting the vaccine may have a valid claim of unfair dismissal dependant on the circumstances and provided that they have continuous employment with their employer for more than two years.
If you have less than two years’ service, your rights of redress are much more limited and you may not be able to bring a claim unless you can link your dismissal to some form of discrimination under the Equality Act 2010 (those forms commonly cited as potentially applicable here are pregnancy, disability, religion and age). However, vaccine hesitancy itself is NOT a protected characteristic. If the reason for your hesitancy is due to a health reason or even religious reason, then indirect discrimination may be considered. But regardless of this the employer might still be able to justify their reasons for insistence. Whether or not a strong “anti vax” belief is such a belief that is capable of protection under discrimination legislation has yet to be tested in the courts.
If I decide against having the vaccine, can this be held against me in a job interview or can my employer refuse to provide me with work?
Possibly. Charlie Mullins, CEO of Plimco Plumbers made the headlines recently by announcing that he will refuse to offer work to anybody who has not been vaccinated, stating ‘no vaccine, no job.’ Further, on 17 February 2021, the UK government’s minister in charge of the COVID-19 vaccine rollout, Nadhim Zahawi MP, stated in an interview with the BBC that it is “up to businesses to decide” whether to require staff to have been inoculated against the virus.
However, it is not clear whether asking a question about an individual’s vaccination status pre-employment could be unlawful under section 60 of the Equality Act 2010, although it appears potentially possible to offer employment conditional upon vaccination. Further, if your reason for not wanting to get the vaccine is related to a protected characteristic under the Equality Act 2010, you may have an arguable claim of discrimination. If you have in excess of two years’ service, you may have grounds to claim constructive dismissal if your employer is refusing to offer you further work.
Employer coronavirus vaccine FAQs
What approach should we adopt to coronavirus vaccinations?
Despite your responsibilities under the Health and Safety at Work Act 1974 to take all reasonable steps to reduce workplace risk and your duty of care to protect employees, we would still recommend a careful and considered one! A policy of encouraging voluntary vaccinations in conjunction with COVID-secure measures and possible workplace testing is recommended over a compulsory vaccination requirement.
Is a blanket policy requiring all employees to be vaccinated the safest approach?
Probably not. It is very likely to result in workplace unrest and potential employment tribunal claims. Its fairness is also likely to be workplace specific; care homes and hospitals may have a very strong case to insist on vaccination as they could describe the requirement to be ‘mission critical.’ As such they are likely to have a stronger chance of defending an unfair dismissal claim should they find themselves in a tribunal.
Further, individual circumstances need to be taken into account. Some individuals may have specific individual concerns such as pregnancy, a long COVID diagnosis or immunosuppression which may render them unsuitable for the vaccine. On top of these factors, there is still a lot of unknowns regarding the vaccine – how long does it last? To what extent does it reduce transmission? This all makes a blanket policy difficult to justify.
Can I require employees to disclose their vaccination status?
Requesting health information from employees, such as whether they have been vaccinated is classed as sensitive information under UK GDPR and employers will need to ensure that they comply with its requirements. Current guidance from the Information Commissioner’s Office states that: “Your reason for recording your employees’ vaccination status must be clear and compelling. If you have no specified use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it.”
What approach should we take with employees who refuse to be vaccinated?
Cases should be dealt with on an individual basis. An environment where employees feel that they can openly discuss their concerns will help with this. Employees should be encouraged to discuss their concerns and risk factors with a view to agreeing a reasonable way forward that balances the employer’s responsibility to provide a safe workplace with the employees own concerns.
Where working from home is possible, then it may be the case that this can be continued. Where it is not, the issue of pay may need to be addressed. However, this is a complicated area and advice should be taken before taking any action (see further discussion below).
Regular review of risk assessments is likely to be required to ensure appropriate management of the situation and risk, in conjunction with COVID secure employment practices. We have seen how rapidly the situation can change. As transmission (hopefully) continues to reduce, employers and employees are likely to have increased confidence of the safety of their workplace.
Can we discipline an employee for refusing to have a vaccination?
Possibly. Again this is likely to depend on the circumstances. Acas guidance suggests that it may be reasonable for an employer to do so in certain circumstances for example, where it is necessary for the employee to do their job.
Can we refuse to pay an employee who refuses to be vaccinated and cannot work from home?
This is a tricky one, particularly if the unvaccinated employee is willing to come into work. They will no doubt argue that they are willing and able to work and therefore should be paid in full if their employer decides to prohibit them from the workplace. The employer may argue that they cannot for health and safety reasons, but such a policy will need to be carefully justified. There is no clear answer to this at this time and the topic is likely to be rife in the employment tribunal. Furlough is still an option at the current time, but the issue is likely to become more pertinent in the coming months. Refusing to pay an employee is very risky. We recommend advice is taken and the particular circumstances analysed as to the best approach. Again, any protected characteristics will need to be considered to avoid discrimination.
Do we need a vaccination policy?
Whilst it is not a requirement, we think it is a very good idea. A policy of encouragement and education is recommended. Vaccination policies that outline the Company’s stance supported by the medical evidence and allow for paid time off to attend vaccination appointments may assist with boosting uptake. The policy can also address data protection issues to alleviate concerns in that area. We would be delighted to assist you with a putting a suitable policy together.
This article is based on information available on 24 February 2021. It is commentary only and should not be relied upon as legal advice. This topic is complex and employers are urged to seek appropriate advice in each instance.
Get in touch
If you would like to discuss any of the issues raised in this article, our Employment Law team would be delighted to hear from you.
Melanie Rowe (Senior Associate)
Paula Early (HR Adviser and Paralegal)