With businesses planning a return to the office from 21 June, many employers will be considering their policies on vaccination and whether they can require their staff to be vaccinated against coronavirus.
There is also a Government consultation on mandatory coronavirus vaccination in the care sector. If it is decided that care sector staff do not require vaccination, it could be challenging for any other sector to impose this, particularly where risks are lower, close contact can be avoided or transmission can be limited using PPE.
Can you require your workforce to be vaccinated?
There is currently no legal requirement to be vaccinated against coronavirus. Therefore, any blanket policy requiring all staff to be vaccinated will be considered unlawful and will carry discrimination and health and safety risks. Vaccination without consent could also amount to criminal offences of assault and battery. Imposing mandatory vaccinations could also result in negative publicity and cause issues with staff recruitment and retention.
ACAS advises employers to encourage and support their staff to be vaccinated without making it a requirement. Examples include offering paid time off to attend vaccination appointments and paying the usual rate of pay where staff are off sick with vaccine-related side effects.
However, there may be limited circumstances where vaccination will be required. Once government travel restrictions lift, an employee may need to be vaccinated to meet entry requirements of another country if travel is integral to their role. Employers will need to balance employees’ rights in these circumstances to avoid a discrimination claim.
What are the employment legal risks of imposing compulsory vaccination?
Breach of contract
Requiring your employees to be vaccinated without their express agreement could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.
Compulsory vaccination could directly discriminate against employees with a protected characteristic as described below. It also amounts to a provision, criterion or practice that could put those employees at a particular disadvantage, and so amounts to indirect discrimination.
- Age – many younger workers will not have been offered the coronavirus vaccine and may also be less inclined to be vaccinated given the lower risk of hospitalisation and reported higher risk of blood clotting.
- Disability – some vaccines may not be suitable for workers with allergies or suppressed immune systems and some workers may refuse it for mental health reasons.
- Pregnancy or maternity – while the government is now advising pregnant women to be vaccinated, this was not always the case. The change in advice may cause concern for employees who are pregnant or breastfeeding.
- Sex – women may wish to delay vaccination due to concerns about the impact on fertility.
- Race – ethnic minority groups have been more hesitant to receive the coronavirus vaccine.
- Religion or belief – workers with strong religious or philosophical beliefs may object to the vaccine on moral or religious grounds.
While in some cases employers will be able to justify mandatory vaccination, this could prove challenging where there are more effective and less discriminatory methods such as regular testing, home working, social distancing and providing PPE.
There will be data protection implications where employers require staff to confirm their vaccination status. This will amount to special category personal data and is subject to stricter regulations.
Employers should exercise greater caution when processing this data in accordance with the specific exceptions laid out in data protection legislation.
Can we dismiss an employee that refuses to be vaccinated?
Employees with at least two years’ continuous service have unfair dismissal rights. Employers are therefore exposed to unfair dismissal claims if they have not followed a fair process or do not have a very good reason for dismissing because the employee has refused the vaccination.
Refusal to comply with a management instruction to be vaccinated could amount to misconduct justifying dismissal. However, a tribunal is unlikely to consider a vaccination requirement reasonable unless it is essential to the employee’s role. Where there is a client need for the employee to be vaccinated this could amount to ‘some other substantial reason’ justifying dismissal - provided the employer acted reasonably.
Even if employees have less than two years’ service, they may still be able to pursue legal action against their employer if they are dismissed. For example, employees can claim automatic unfair dismissal on the grounds they were dismissed after expressing health and safety concerns about mandatory vaccinations. Such a claim requires no minimum length of service.
What should you be doing now?
It is important for employers to consult with their staff and/or any recognised staff associations or trade unions now before introducing a company vaccination policy. Policies should encourage staff to have the vaccine and should also acknowledge that it is not appropriate for all staff.
Where vaccination is a requirement of a job any consequences of refusal should be outlined. Finally, the policy should set out the employer’s data protection obligations in relation to processing special category personal data.
It’s important to seek legal advice before introducing a company vaccination policy to mitigate the risks summarised above.
If you have any queries regarding compulsory vaccination of staff, please contact Jennifer Mansoor.