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Employment law issues arising from the rollout of the Covid-19 vaccination programme

28th January 2021

Employment law issues arising from the rollout of the Covid-19 vaccination programme

The government has set the goal of vaccinating 15 million people in the top four priority groups (residents of care homes for older adults and their carers, 80-year-olds and over, front-line healthcare workers, 70-year-olds and over and clinically extremely vulnerable individuals) by 15 February 2021. The government also aims to vaccinate a further 17 million people who are over 50 or between the ages of 16 and 64 with an underlying health condition by the spring. Dominic Raab, Foreign Secretary, has vowed that every adult in the UK will be offered a vaccination before September 2021.

With all that in mind, vaccinations will be an important consideration for employers when workplaces are able to reopen, as they give rise to the various potential legal issues.

Tim Jones and Lucy Williams, both of the Higgs & Sons employment team, take a closer look at the issues.

Can an employer force its employees to have a Covid-19 vaccine?

Guidance from workplace experts Acas states that ‘employers should support staff in getting the coronavirus (COVID-19) vaccine, but they cannot force staff to be vaccinated.’

As the government has decided to not make vaccinations compulsory, it is difficult for employers to enforce a mandatory vaccination policy.

The Acas guidance does, however, note that employers ‘may decide it’s necessary for staff to be vaccinated. This should only be the case if getting the vaccine is required for someone to do their job.’ It gives the example of having to travel overseas for work and needing to be vaccinated in order to do so.

It could also be the case that employers will want their employees to be vaccinated if they work with extremely vulnerable people. For instance, care workers could be required to be vaccinated by their employers. It is possible that a directive to be vaccinated in this scenario could be a reasonable management instruction given by the employer. However, all of the circumstances would have to be considered and it would be sensible for an employer to undertake a risk assessment before requiring that anyone must be vaccinated.

Where people are able to work from home, do not frequently come into contact with those at risk in their work or where there is no requirement of vaccination in order to carry out their job, it will be very difficult for employers to justify a mandatory vaccination policy.

Instead, employers can communicate with staff to encourage a voluntary take-up of the vaccine. An employer has a duty of care towards its employees and promoting the vaccine could fall within an employer’s duty to protect the health and safety of its staff. This is especially the case as we know that, in order to successfully reduce community transmission of Covid-19, there needs to be a large take-up of the vaccine.

Could an employer discipline an employee who refuses to have a vaccine?

According to Acas, if an employer believes that someone’s reason for refusing a vaccine is unreasonable, this could result in a disciplinary procedure in certain situations. It would depend on the employer’s vaccination policy and whether vaccination is necessary to do the job as detailed above.

If an employer gives a reasonable management instruction to be vaccinated because it is necessary for the employee to carry out the work and the employee refuses to follow this instruction, dismissal could be fair providing the appropriate procedure was followed.

The employee should be given the chance to explain their reasoning for refusing to be vaccinated and the employer should assess the reasonableness of the employee’s rationale before taking any disciplinary action.

Nevertheless, an employer should always think very carefully before disciplining an employee for refusing to be vaccinated as a tribunal may be cautious to find that it is fair to impose a medical procedure on employees.

There is also the possibility that requiring an employee to be vaccinated could infringe on their individual right to privacy under the Human Rights Act 1998. It should therefore be considered if there are less invasive means of reducing the risk of Covid-19 transmission at work before disciplining a refusal to be vaccinated.

Discrimination risks

Employers should also consider potential discrimination issues if they are going to require employees to be vaccinated and consider penalising those that refuse.

The vaccines being rolled out in the UK will not be suitable for all people. For instance, the vaccines are not recommended for those who are pregnant unless ‘the benefits outweigh the risks’ and they are not safe for some people with certain health conditions or severe allergies.

Additionally, the vaccine is currently only available to people of a certain age and the extremely clinically vulnerable. There is also the chance that employees who hold particular religious beliefs may object to being vaccinated on such grounds.

Therefore, requiring that all employees are vaccinated could risk arguments of sex or pregnancy discrimination, age discrimination, disability discrimination or discrimination because of religion or belief. Due to this, any vaccination policy would have to allow for exceptions. 

On this basis, employers should also think carefully about only allowing employees who have been vaccinated to attend the workplace. This could give rise to potential discrimination claims for the reasons outlined above. Furthermore, any reduction in pay associated with unvaccinated employees not being able to attend the workplace could also lead to breach of contract or unlawful deduction from wages claims.

Health & safety issues

As we know, the vaccines do not offer 100% protection from Covid-19 and some employees may not be able to access the vaccines or it may not be safe for them to do so. For this reason, employers should tread carefully if they are considering using vaccinations as a means of reducing transmission in the workplace.

In order to avoid potential discrimination issues, and to protect the safety of the workforce, employers should consider continuing with other health and safety measures to reduce the risk of transmission, such as social distancing, washing hands, and working from home where possible.

Data-protection issues

Understandably, employers may wish to keep a record of who has been vaccinated in order to control the transmission of Covid-19 in the workplace. However, employers should bear in mind that obtaining vaccination details from staff will constitute the processing of special category personal data. It will therefore be necessary that employers keep records in accordance with GDPR and data protection laws.

For any further information or advice on the above issue, please contact the Employment Team for further advice on 01384 327172 or tim.jones@higgsandsons.co.uk

 

 

 

 

 

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