11th May 2021 | Mark Fellows | Employment Law, Coronavirus, Employer
As the rapid rollout of the UK’s COVID-19 vaccine provides hope of returning to normality, preparations are being made for staff to return to the workplace. Unsurprisingly the vaccine has divided opinion, with a survey by HR Locker suggesting that... Read more
As the rapid rollout of the UK’s COVID-19 vaccine provides hope of returning to normality, preparations are being made for staff to return to the workplace. Unsurprisingly the vaccine has divided opinion, with a survey by HR Locker suggesting that one quarter of UK employers are intending to introduce a ‘No Jab, No Job’ policy of making vaccination of staff a compulsory requirement.
Is that permissible I hear you ask?
Can I compel staff to have the Covid-19 Vaccine?
In short, this is fraught with a myriad of issues.
There is currently no legislation permitting an employer to require staff to undergo mandatory medical treatment, including vaccinations, and to do so could amount to a breach of the employee’s human right to respect for their private life.
In addition, any disciplinary action imposed against an employee for refusing to be vaccinated could give rise to discrimination claims (see below).
There will of course be some sectors where you can see a greater justification for requiring staff to be vaccinated, such as healthcare or care home settings, where non-vaccinated employees could present a threat to patients, residents, other staff and themselves. As Boris Johnson recently pointed out, healthcare professionals are already required to be vaccinated against hepatitis B, so requiring a COVID-19 vaccination for those “entrusted with the care of a patient” is a possibility, although the Government is yet to give formal guidance on this issue.
However, in most sectors, a blanket policy of requiring staff to be vaccinated is unlikely to be justified.
If I want to protect the wellbeing of my staff, why is that potentially discriminatory?
It firstly depends upon whether the employee’s refusal to be vaccinated relates to a protected characteristic. This could arise on several grounds:
- religion/belief, as some religions do not condone vaccinations and there is evidence that pig gelatine can be found in certain vaccines;
- age, the vaccine is being rolled out on a sliding age scale such that some members of staff will not yet be eligible;
- maternity/sex, as current guidance is that pregnant women should not have the vaccine; and
- disability, as the vaccine may not be recommended for individuals with certain medical conditions or allergies.
Secondly, it depends upon whether those with the protection afforded above are treated less favourably or penalised for not being able to comply with a vaccination requirement. That might be refusing to allow the employee to return to the workplace, or even disciplining them for a refusal to have the vaccine.
In respect of some types of discrimination, you can seek to justify a discriminatory policy and whilst in some (limited) cases there might be a justification argument for insisting on the vaccine, this will be a very high threshold to surmount, particularly given the existence of less intrusive measures, such as regular testing, PPE and social distancing.
Can I make vaccination a requirement of hiring new employees?
Again, this is fraught with risk.
There are actually restrictions in place that are designed to prevent an employer from asking applicants about their medical history until such time as an offer of employment has been made, and there are also privacy and data protection obligations that will apply in respect of any such information.
When being considered for a vacant role, applicants have the same protection from discrimination as employed staff, so the above concerns will arise. If an applicant is not offered a role because of their refusal to have the vaccine, and their reason relates to one of the protected characteristics mentioned above, then this is likely to amount to discrimination.
What measures can an employer take?
Aside from some very limited exceptions, a compulsory vaccination requirement is not something we would endorse. Instead, we believe employers will need to careful consider a range of measures that can still be an effective way to ensure a safe working environment, whilst balancing individual circumstances and sensitivities:
- Encourage employees to have the vaccine
You can encourage your employees to have the vaccine. Under the Health and Safety at Work Act 1974, employers are obliged to take steps to reduce workplace risks. Consider the extent to which you encourage employees to be vaccinated, as it is a personal choice for everyone.
- Introduce other COVID safe measures
These could include asking staff to wear masks (subject to exemptions), implement social distancing and/or installing plastic screens as appropriate, setting up hand sanitiser stations, arranging for regular testing of staff, and deep cleaning the office.
- Flexible working
Allow employees to work from home where feasible or consider temporary changes to minimise the risk as far as possible. For instance, employees may request to change their working hours to avoid commuting on public transport during rush hour.
- Vaccine policy
Consider implementing a vaccine policy to handle potential workplace disputes which may arise regarding vaccination, for example, how to manage a vaccinated employee refusing to work alongside a non-vaccinated employee or requiring staff to not ask others about their vaccination status.
There is talk of a 3rd vaccination to be rolled out later in the year, so this is a situation that is not going away anytime soon. Taking some of the measures above will hopefully enable you to minimise any disputes on this issue and enable the business to get back to the normality that we have all been craving.