January 29, 2021
Authored by: Rebecca Harding-Hill and Mark Kaye
1. Can an employer require an employee to be vaccinated?
No. The Public Health (Control of Disease) Act 1984 provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination. In addition, employees may have the protection of Article 8 of the European Convention on Human Rights which provides that individuals have the right to not be physically or psychologically interfered with. Furthermore, any forced vaccination is likely to amount to a criminal offence.
ACAS guidance advises that employers should support staff in getting the vaccine, but cannot force them to be vaccinated.
2. What are the discrimination risks associated with vaccination?
Discrimination issues may arise either as a result of compelling employees to take the vaccine or putting in place measures which are detrimental to those employees who have not taken the vaccine.
The two key risks are likely to be disability discrimination (where an employee is unable to get the vaccine because of a health condition) and religious or philosophical belief discrimination (where, for example, there may be concerns for vegan employees due to animal testing on the vaccines).
3. What impact will vaccination have on the COVID-secure workplace?
As well as the fact that no vaccine will be 100% effective, there will be populations in the workforce who cannot or will not be vaccinated. Accordingly, employers should be cautious (irrespective of government guidance on the point) about removing any COVID-secure measures in the medium to long term.
4. Can employers contractually oblige employees to be vaccinated?
It seems likely that those employees who are reluctant to be vaccinated will also object to a contractual requirement to be vaccinated. Without employee consent, employers would either have to unilaterally impose the change or terminate and re-employ on the new terms. Both options carry significant risks, particularly when the change is so controversial and may have an impact on the health of the employee. On that basis, it is unlikely that many employers will want to take this route.
5. What other options are open to employers when employees refuse to be vaccinated?
Employers will need to consider how best to achieve voluntary vaccination within their workforces. Winning hearts and minds will be crucial. Educating the workforce and consulting with employees and, where relevant, their representatives, may contribute towards voluntary take-up of the vaccine.
6. Can an employer refuse to let an unvaccinated employee enter the workplace?
Careful consideration will need to be given as to whether it is appropriate to stop those who have not been vaccinated from entering the workplace. Such an approach could potentially give rise to discrimination claims. Employers should consider other alternatives, such as working from home or COVID testing of employees who are not vaccinated.
7. Is it possible to discipline or dismiss an employee who refuses to be vaccinated?
ACAS guidance suggests that a refusal to be vaccinated could, in some situations, result in a disciplinary procedure. However, this would depend on whether vaccination was necessary for an employee to carry out their duties. A classic example may be a care home worker.
Such action should, however, be carefully considered. This is particularly the case given that there is currently very little evidence to suggest that vaccines actually stop transmission and, therefore, employees will be able to argue that there are other ways to reduce the risk of workplace transmission.
8. Can an offer of employment be conditional on proof of vaccination?
This is, potentially, possible. However, such an approach will run the risk of numerous potential discrimination claims. In addition to disability and religious/philosophical belief discrimination, age discrimination claims are also feasible given that younger applicants will be at the back of the vaccination queue.
9. What are the data protection issues for employer?
From a GDPR and privacy perspective, vaccination data is special category data. Employers will therefore need to ensure that any records are kept in accordance with GDPR and privacy laws. For example, the data must be held securely and must not be held for any longer than is reasonably necessary. In the first instance, data protection policies and Privacy Notices should be reviewed and updated accordingly.
10. How important is employer flexibility?
Since the start of the pandemic, most employers have recognised the need be flexible. This is likely to remain important for the foreseeable future. Younger employees who are vaccinated last and those that cannot for various reasons be vaccinated may still want to work from home deep in 2021.
In any event, flexible and agile working going forward is inevitable given that it is now, largely, proven to be effective. Many employees and candidates will now demand it. From an HR perspective, perhaps the real legacy of COVID-19 is that flexibility is now a new currency.
BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html