Part of this involves the UK’s vaccination programme which is now well underway. There are positive signs for businesses that things are on the up and business will slowly start to return to normal. But what does that mean for your business and its employees?

Health and Safety

The vaccine itself could put the employer between a rock and a hard place as they ask themselves is it possible to make vaccination of employees compulsory? This question is more apparent in some businesses than in others. Does Health and Safety Law protect employers if they insist employees are vaccinated? Could a failure to mandate vaccinations actually lead to claims from employees that they don’t feel safe coming to work?

Government position

The Government have said that it is not planning on making the vaccine mandatory. But does that mean that employers can make the vaccine mandatory? The answer is not straight forward

Forcing the issue

An employer cannot force someone to take the vaccine, instead the question to ask is whether or not the vaccine can be made a condition of employment and if so, would that be a reasonable and lawful condition?

If an employer did want to make vaccination mandatory, it can be made into a contractual requirement, especially in sectors where it may be viewed as reasonable for an employer to request all staff be vaccinated, such as the care sector. This though would require a change in the employee’s terms and conditions of employment, which in turn needs the employee’s consent.

If you are thinking of introducing a vaccination requirement within your business and you are not sure how far you can go, please talk to us to see what risks you would be running in requiring employees to have a jab or allowing them to not have a jab. Each business is different and even each employee within the business may need a different approach.

Making vaccinations compulsory does come with some risks. It can lead to claims of unfair or constructive dismissal if an employee is dismissed or resigns over the issue. If failure to comply with the compulsory vaccination leads to disciplinary action, the employer will need to be able to show that the instruction to be vaccinated is a reasonable one and that a fair disciplinary process took place. This could be a very difficult area of employment law to navigate through and one which could ultimately be costly.

Compelling an employee to have the vaccination at these early stages would be difficult to justify. The employer would have to show that it is a reasonable request, taking into account a number of factors such as, will vaccination protect others? What sector do they work in and what job do they do? There also needs to be a level playing field and consistency across the board, the majority of the UK workforce have not been offered their vaccine yet.  The employee would have to have at least a fair chance of accessing the vaccine, before any other steps are followed.

Discrimination

A further danger to employers is the likelihood of being exposed to discrimination claims under the Equality Act 2010. Given that the vaccine is been distributed by age, taking any action against employees who have not been given access to the vaccine, could amount to age discrimination. The likelihood being that the younger and less vulnerable employees will be the last to receive their vaccine.  This would be a factor to consider affectng an employer’s policy on vaccination.

Choice

There will also be a proportion of the workforce who choose not to be vaccinated. There are many reasons for this, and some may be justified. For example, at the moment, pregnant women are been advised not to receive the vaccine. Employers need to be mindful of these factors before making any decisions which could adversely affect members of their workforce.

For example, forcing a young pregnant employee to have a vaccine or face disciplinary action is not going to go down well, unless there are some very compelling reasons as to why.

Alternatives

There are alternatives to explore first before looking to force employees to have the vaccine. Consideration should be given to suitable alternatives such as employees been redeployed, or if it is possible, asking them to work from home before taking any action against them. There are also the other restriction measures to consider such as social distancing and the wearing of face masks.

Frequent questions

We have listed below some of the most frequent questions asked by employers and the answers we have given.

Can I ask employees if they’ve had the Covid-19 vaccine?

You are able to ask employees if they’ve had their vaccine, however; depending on their answer, there may be some data protection implications in doing so. Holding any information in relation to an employee’s health is likely to be classed as ‘special category data’ under data protection laws. As the data is considered sensitive, it must be placed under strict confidentiality with limited access in order to protect it.

Can I make my employees have the vaccine?

In the absence of vaccination becoming a legal requirement, employers cannot force employees to be vaccinated without their consent, however; you can make it a workplace requirement for employees to be vaccinated, provided that the reason you are asking them is considered a reasonable request. There are some settings such as health and social care, where a requirement for employees to have the vaccine is reasonable and necessary. However, the majority of workplaces may find it difficult to justify such a request, particularly where other safety measures such as social distancing and face coverings are available.

Many employers will be concerned about ensuring the safety of their staff for both testing and vaccination are likely to be important in enabling workplaces to open back up. However, vaccination is a medical procedure which carries inherent medical risks and may not be suitable for everyone, there will be different legal considerations and implications such as discrimination, allergies and religious/philosophical beliefs to take into account.

Do employers have a health and safety obligation?

Employers do have a legal obligation to protect the health and safety of their workforce as much as is reasonably possible. While requiring employees to have the vaccine may be a means of fulfilling those obligations, such a requirement can only be imposed if it is reasonable in all the circumstances and not imposed with a blanket approach without exceptions taken into consideration.

Where the requirement is not reasonable, employers will need to rely on other measures to ensure the safety of employees, such as social distancing and the wearing of face coverings. No vaccine is 100% effective and it is still not known the extent to which people who have been vaccinated can still spread the virus.

If vaccinations cannot be made compulsory, what are the options for employers?

Employers can choose to engage their employees in the topic of vaccination providing guidance about the vaccine and encourage them to have it if it is available to them. Current UK guidance is for employers to support employees in getting vaccinated and about the benefits of vaccination.

What if an employee refuses to get vaccinated? Can the employer dismiss them?

Employees have an implied duty to follow all reasonable instructions set out by their employer and can potentially be dismissed for failure to follow such an instruction. The crux for the employer is to show that given all the relevant circumstances, the instruction is a reasonable and lawful one.

Next steps

There is currently a lot of noise being made around employers requiring employees to be vaccinated before they return to work. This is an unprecedented area of employment law produced as a result of the pandemic. As there are so many differing factors to consider, each case must be measured individually, and all avenues explored before any action is taken against employees. One employee’s personal circumstances or views could be very different to that of another. If you are experiencing some difficult conversations around the topic or would like to talk your options through with us, please do not hesitate to get in touch.

If you are considering implementing a Covid-19 Policy contact us as we are more than happy to work with you on this and produce a policy which specifically fits both your working culture and how you operate. We are open and operating as normal and are here to help.