Can we require our employees to be vaccinated?

Now that the UK is past its first week of the COVID-19 vaccination rollout, employers are starting to consider what 2021 will look like and whether there is hope of the workplace returning to some form of normality. The question on many employers’ minds is – can we require our staff to get vaccinated?

Before we jump into the legal issues, it is important to remember from a practical perspective that currently the vaccine is not commercially available. Instead, it is being rolled out for free on the NHS and in accordance with a specific government schedule, which broadly prioritises individuals by descending age order. It will therefore be a while before the majority of the working population is offered vaccination.

What are the legal considerations?

Would requiring employees to be vaccinated count as a reasonable instruction?

Employers may be able to fairly dismiss an employee who has failed to follow a reasonable instruction. Whether an instruction is reasonable or not will depend on the specific circumstances. For example, requiring staff working in a care home to get vaccinated, and disciplining or ultimately dismissing them if they do not, may be considered reasonable due to the high-risk nature of the work, and the fact that vaccination in these settings is mission critical.

However, it will likely be much harder for employers of office workers for example to show that the instruction is reasonable in the circumstances. It is a good idea to take legal advice to help you assess what would be considered reasonable in the circumstances of your business.

Employers directing employees to get vaccinated need to look to balance the infringement of ECHR Article 8 rights against the risks that result from having an un-vaccinated employee. The risk factor is far from straightforward, scientists are unsure at this stage whether being vaccinated means that a person stops transmitting the virus to others or whether it simply suppresses symptoms in the carrier.

Those employers who nevertheless want to mandate vaccination, should ensure they clearly communicate with employees or, where applicable, trade union representatives, and are upfront about the reasoning behind this decision.

Where employers end up disciplining or dismissing staff for failing to follow an instruction to vaccinate, employers must also remember that aside from showing that the instruction was reasonable in the circumstances, they also need to show a fair dismissal process was followed. Employers should therefore carefully consider alternatives to dismissal, such as relocating staff to lower-risk roles instead.

What are the health and safety considerations?

Employers are obliged to take reasonable steps to reduce any workplace risks in accordance with the Health and Safety at Work Act 1974. It would therefore be sensible to consider the vaccine when undertaking Covid-19 risk assessments, including the measures that might be taken where an employee decides not to get vaccinated.

Encouraging vaccine uptake amongst staff would be sensible. Mandating the vaccination as a health and safety requirement could theoretically be an option where the employer can show, having carried out a risk assessment, that being vaccinated is the most reasonably practicable way of mitigating the risk of COVID-19. However, vaccination should not be viewed as the only method of reducing COVID-19 risks, particularly now when the vaccination roll-out is in its infancy. Mandating vaccination could also open the door to claims from staff who suffer an adverse reaction to the vaccine.

Are there any discrimination risks?

Employers are at risk of indirectly discriminating against employees with certain protected characteristics where they treat vaccinated staff differently from unvaccinated staff. Different treatment could include refusing unvaccinated staff entry to certain parts of the workplace, not allowing them to travel abroad for business, refusing them entry to certain roles or denying them sick pay if they are off sick with COVID-19 symptoms.

Some discrimination scenarios involving different protected characteristics are explored below:

Age – As the vaccine is being rolled out to older individuals first, it will be a very long time before middle-aged and younger members of staff are eligible for vaccination – at no fault of their own. Any differences in treatment between vaccinated and unvaccinated staff could therefore be indirectly age discriminatory unless the treatment could be objectively justified.

Disability – People with certain medical conditions are being advised not to take the vaccine. These employees may be disabled for the purposes of the Equality Act 2010 and their decision not to get vaccinated could be ‘something arising from’ that disability. Differential treatment could therefore lead to successful indirect disability discrimination claims unless the employer could show an objective justification for the treatment. Another point to note on disability is that where employers press employees for reasons as to why they will not take the vaccine, employers could be put on notice of a disability they had not yet been aware of. Although this should be a good thing, employers must be prepared to take any actions necessary.

Pregnancy and maternity – Pregnant women have been advised not to take the vaccine. It may therefore be sensible for employers to caveat any requirement to vaccinate where they are set on doing so, to avoid discriminating on this basis. However, employers should also be mindful of the fact that a caveat will not necessarily solve all issues as there may be women within the workforce who are in the very early stages of pregnancy but are not prepared to announce this yet, or who are trying to get pregnant and are therefore reluctant to take the vaccine. Even if only from an employee relations perspective, this situation could prove difficult to navigate.

Religion or belief – Theoretically an anti-vaccination stance could attract protection under the Equality Act 2010 by amounting to a protected philosophical belief. The anti-vaxxer employee would need to establish that their belief was genuinely held, cogent, serious and worthy of respect in a democratic society amongst other things. Religious discrimination arguments may have a higher chance of success. For example, Muslim employees may be averse to vaccination as many vaccines contain porcine gelatin. This same factor could cause problems for vegans too, who disagree with vaccines that contain animal-based ingredients or have been tested on animals. Ethical veganism has been found to amount to a belief, capable of being protected under the Equality Act 2010.

It is important to remember that where an employee’s refusal to be vaccinated is down to a protected characteristic, and results in detrimental or disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim and claim constructive unfair dismissal if they resign in protest.

What are the data protection issues?

Requiring evidence of vaccination gives rise to huge data protection issues; employers will need to consider the legal basis for processing this data, a data protection impact assessment will be required, a decision will need to be made about how long the data can be held for and whether it is appropriate to hold more than a simple “yes” or “no” response, an employer may encounter difficulties deciding how to verify the accuracy of any data received.

Considering all the above issues, it is very important to seek legal advice in advance of requiring employees to get vaccinated.