This topic is incredibly sensitive and should be approached with extreme caution. If a business is considering imposing the Covid-19 vaccine on its employees, it will require careful communication with both employees and their representatives.
Can vaccination be mandatory?
Currently, the government has only legislated for the COVID-19 vaccine to be mandatory for workers in registered care homes in England. However, the government has said that it intends to consult on whether to extend the requirement to workers in the health and social care sectors. Updates will be released as and when they become available.
In respect of care home workers, the 16-week grace period begun on 22 July 2021 and mandatory vaccination of regulated care home workers will come into force from 11 November 2021.
In the absence of vaccination becoming a legal requirement (excluding workers in registered care homes) an employer cannot force an employee to be vaccinated without their consent. Vaccination without consent could amount to the criminal offences of assault and battery. Employers also need to consider Employment Tribunal Claims such as disability discrimination, age discrimination, pregnancy or maternity discrimination, sex discrimination, race discrimination and discrimination based on religion of belief. We can advise you as to the implications of each type of potential discrimination in relation to the covid vaccination.
Key things to consider:
An employer outside of the regulated care home sector that is considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:
- Vaccination is not suitable for everyone.
- Forcing an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, enabling them to claim constructive dismissal.
- Mandatory vaccination could indirectly discriminate against employees with specific protected characteristics and breach certain human rights laws.
- Currently, private vaccination is not available. Individuals must wait their turn, in order of priority, to be offered vaccination. Allowing only vaccinated employees to return to the workplace, for example, could potentially lead to indirect or direct age discrimination claims by younger employees.
- Employers may find it difficult to justify mandatory vaccination on health and safety grounds. Although vaccination reduces the chance of a vaccinated individual contracting COVID-19, the extent to which vaccination reduces transmission is still very much under review.
- Imposing mandatory vacation could result in negative publicity for an employer which may have a detrimental impact on the business in terms of profitability, employee retention and recruitment.
- There is a risk, although thought to be small, that vaccination could have long-term, adverse side effects for some individuals, which may concern some employers. An employee who was forced to get the vaccination and who suffers an adverse reaction could seek to bring a personal injury claim against the employer.
- Consultation with relevant people such as workplace and health and safety representatives, and trade unions, is likely to be needed.
- The data protection implications of demanding employees provide information on their vaccination status, verifying its accuracy and retaining that data.
What can employers do to increase vaccine uptake?
The ACAS guidance suggests that employers should support staff in getting the vaccine but cannot force them to be vaccinated (with the exception of workers in registered care homes). It does, however, recognise that it may be necessary to make vaccination mandatory where it is essential for an individual to do their job, for example if they are required to travel overseas.
Employers should listen to concerns if employees refuse the vaccine. If the reasons for refusing the vaccine are unreasonable, then employers may be able to take disciplinary action against the employee. The relevant factors when considering this are stated in the ACAS guidance to be:
- Whether there is a vaccine policy in place.
- Whether the vaccine is necessary to do the job.
- Whether an employee’s reason for not wanting the vaccine might be protected under the Equality Act 2010.
Whilst requiring vaccination may be lawful in very specific circumstances, it is not always going to be the best approach to take. Employers should consider the precedent it wishes to set for the rest of its workforce, the risks of imposing a blanket policy and the impact on reputation and staff morale. Employers are still required to carry out risk assessments in their workplace and ensure they are Covid secure.
The government is taking steps to address vaccine concerns through a new Vaccination Equalities Committee, which brings together representatives from public health, local authorities, voluntary organisations and faith groups in an effort to understand and find ways to overcome the specific barriers facing different communities and individuals.
Is there any guidance employers can refer to?
Yes, on 12 July 2021, Public Health England published the COVID-19 vaccination: guide for employers.
The guide encourages employers to share information on the facts about vaccination (including practical information about how and where workers can get vaccinated in their locality).
Contractual requirement
Introducing a contractual requirement for employees to get the vaccine would amount to a change in terms and conditions of employment and any contractual change needs to satisfy the usual factors. It is realistic to predict that many employees would object to such a requirement, either due to their concerns about the safety of the new vaccine (whether well-founded or not) or due to an objection to being forced into what is essentially a minor medical procedure by their employer. Without agreement, the employer would have to either unilaterally impose the change or terminate and offer re-engagement on new terms. Both options carry considerable risk, especially when the change is so controversial.
What about recruiting?
Asking a candidate their vaccination status could be a prohibited health question in some circumstances under the Equality Act 2010.
Under the act, employers must not ask about the health of candidates before offering work to a candidate or before including a candidate in a short list or pool of candidates from which they will select.
A question concerning a job applicant’s vaccination status could be unlawful unless it falls within one of the limited circumstances in which a health question can be asked.
Get in touch today to speak to our Employment Solicitors or HR Consultants to find out how we can help you, or how this may affect your business and employees!
