As employees start to return to work, employers are facing questions over what their stance should be regarding the Covid-19 vaccine. With social distancing restrictions lifted, the vaccine is at the frontline of protection. But can employers make it compulsory for employees?
The coronavirus vaccine has now been offered to everyone aged 16 and older, with almost nine out of ten people in the UK aged over 16 having received at least one dose.
So far, the only individuals required by law to have the inoculation are care home staff. The government has launched a consultation to look at whether this should be extended to frontline health and social care workers.
Other employers and businesses will need to formulate a vaccination policy and decide how they are going to deal with a number of issues.
Legal issues posed by compulsory vaccination
Insisting that employees have the vaccination is likely to be fraught with problems. Asking an employee whether they have had the vaccine will be classed as collecting health data. The Information Commissioner’s Office advises that this type of data collection must be necessary and required for a specific purpose, in which case it will be lawful.
An employer could argue that the information is necessary to protect the health of employees and the public, however, this might not be sufficient justification if the employee has only limited contact with others.
In dismissing an employee with more than two years’ service, it will be necessary to show that there is a fair reason, or the employer could face a legal claim for unfair dismissal. Where employees are required to travel or work in a healthcare setting, being unvaccinated could potentially be a breach of health and safety requirements, meaning dismissal possibly be justifiable.
Otherwise, an organisation would have to show that insisting on vaccination is a reasonable step in light of the business they are conducting.
There is also potential for a case to be made for vaccination to benefit the public, although it remains to be seen whether this would be accepted by a court or tribunal.
In recruiting new employees, an employer could require that applicants be vaccinated although they will need to avoid discriminating against anyone with a protected characteristic, such as someone with a disability.
Alternatives to compulsory vaccination
It is open to businesses to try alternative approaches in respect of vaccination. Strongly encouraging employees to take up the vaccine is acceptable as it can be construed as taking reasonable steps to reduce risk in the workplace. Regular testing could be put in place for those who do not want the vaccine.
Offering incentives such as vouchers or cash may become commonplace in future, but at present this option has not been tested legally as to the issue of discrimination. There is the potential for difficulties where employees have protected characteristics that mean they cannot or will not have the vaccine.
Putting a vaccination policy in place
A vaccination policy could allow you to put forward your support for vaccination and set out why you believe it is the right option. You can also include behaviour guidelines for your employees, for example, advising them not to ask colleagues about their vaccination status or asking them not to spread vaccine misinformation. You could also use the policy to give employees time off to attend vaccination appointments, although this could be considered an incentive, so should be used with caution.
Where you are making any requirements of unvaccinated employees, you need to be prepared to allow exemptions for those who are not having the vaccine because of protected characteristics such as disability or religious belief.
It is strongly advised that employers take legal advice before putting a vaccine policy in place.
Opening the workplace
As employees return to the workplace, it is open to the employer to require those who have not received two doses of the vaccine to stay at home. This may be preferable if you have vulnerable employees who are concerned about working alongside unvaccinated colleagues, although you should ensure that working at home does not put the employee at any disadvantage in any way. You can also require those returning to the office to take regular lateral flow tests.
For more information, see our article coronavirus and the workplace.
Contact us
The law surrounding the coronavirus vaccine is new and largely untested by courts and tribunals. Employers will be well advised to take legal advice from an expert employment lawyer before taking any action.
At Witan Solicitors, we can advise you on how to deal with issues surrounding vaccination and the workplace and discuss your options with you.
If you have questions concerning vaccination or your duty of care to your employees and you would like to speak to an expert employment solicitor, email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in London, Birmingham and Northampton.
