Coronavirus: Compulsory vaccination – the employment legal issues

12 November 2021

With businesses seeing more staff returning to the office, many employers will be considering their policies on vaccination and whether they can require their staff to be vaccinated against coronavirus.

Mandatory coronavirus vaccination in the care home sector in England

All adult care home staff and volunteers must now be fully vaccinated against coronavirus, excluding those who are medically exempt. This will include front line care staff and also tradespeople, hairdressers, beauticians and CQC inspectors visiting the care home. However, this requirement will not extend to friends and relatives visiting a resident or to those entering to assist with an emergency or carrying out urgent maintenance work.  

It is unlawful for CQC regulated care homes to employ staff who are not vaccinated against coronavirus unless they are medically exempt. Care homes will need to include the vaccination requirement in their recruitment policies and job adverts and properly understand any medical exemptions during the recruitment process. 

Government to introduce mandatory coronavirus vaccination for frontline health and social care workers in England

The Government has now announced that vaccination against coronavirus will also become mandatory for health and social care workers in England who have face-to-face contact with patients unless they are medically exempt. This requirement will apply to doctors, nurses and dentists who are directly involved in patient care, and to ancillary staff such as porters, receptionists and cleaners who may have contact with patients in the course of their work. 

From 1 April 2022, it will be unlawful for CQC regulated providers in health and social care in England to employ unvaccinated staff, except for those individuals who are medically exempt. To comply with the new regulations (on current time frames) unvaccinated staff will need to have their first dose of the COVID-19 vaccine by 21 January 2022 - since individuals are not considered fully vaccinated until 2 weeks after their second vaccine and the current advice is that vaccines should be given 8 weeks apart. 

To meet the deadline, all CQC regulated providers in health and social care in England, including the NHS, will need to begin a communication process with their staff now to ascertain their vaccination status and encourage those that have not been vaccinated to do so if they are not medically exempt. If staff refuse to be vaccinated, and they are not medically exempt, CQC regulated provider will also need to consider redeployment and/or explore if there is a way the worker’s’ role can be redesigned to remove patient contact or as a last resort termination of employment for those workers who refuse to be vaccinated and for whom redeployment/role redesign is not an option. This could involve a risk assessment of which parts of the organisation could be most affected, how they might then redeploy and any other terms’ impact such as on hours or remuneration. Remote working without access to frontline patient care or to patients might also be a consideration for some workers. 

The Government’s decision to extend the coronavirus vaccination requirement to health and social care could enable employers in other high-risk coronavirus work environments to justify requiring their staff to be vaccinated. 

Medical exemptions

Care home staff in England who are medically exempt from the coronavirus vaccine, can self-certify this until 24 December 2021. However, from Christmas day, a medical exemption will need to be certified by the individual’s GP. Whilst this may stop unfounded medical exemption claims from individuals who would prefer not to be vaccinated, it also adds to the work burden on GPs and is likely to be a lengthy process. Therefore, care homes and other employers that require vaccination, should now be consulting with their staff who have been self-certifying their medical exemptions, to inform them of the new process effective from 25 December 2021.  

The Government has also announced that a MATB1 stands as a medical exemption, for pregnant workers who prefer not to be vaccinated, until 16 weeks following the birth of their child. Whilst the coronavirus vaccine has been declared safe for pregnant women, and they have been encouraged to take up the vaccine, the Government is allowing pregnant women to choose to delay their vaccination until after birth. As pregnant women do not obtain a MATB1 until later in their pregnancy, presumably those unvaccinated who prefer not to take the vaccine during their pregnancy may also apply to their GP if they so wish for a medical exemption on pregnancy grounds to cover their position until the MATB1 is available. 

This is an interesting development. Care homes and other high-risk sectors choosing to impose compulsory vaccination, which might impact on a care worker retaining their job, should consider informing any pregnant staff of the MATB1 position. Were any medical exemption to be granted to a pregnant worker (pre receipt of their MATB1), any action by an employer to treat an employee with a pregnancy-related medical exemption less favourably than a worker with  a non-pregnancy-related medical exemption will be unlawful and could amount to discrimination. 

Can you require your workforce to be vaccinated? 

Apart from the care sector in England, and the changes due to come into force in health and social care in England, there is no legal requirement to be vaccinated against coronavirus. Therefore, any blanket policy by an employer requiring all staff to be vaccinated, before they can access their employer’s workplace or client premises for work, will be considered unlawful and will carry discrimination and health and safety risks. 

Imposing mandatory vaccinations as a condition of continuing in employment 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 staff 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, even outside the health and care sector, there may be circumstances where vaccination will be a requirement. For example, 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 assess 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. 

Discrimination

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 amount to indirect discrimination.

  • Age – younger workers may also be less inclined to be vaccinated due to 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. The Government has also announced that pregnant women can choose to be medically exempt from the coronavirus vaccine, until 16 weeks after the birth. 
  • 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 a requirement for mandatory vaccination, this could prove challenging where there are effective and less discriminatory methods such as regular testing, home working, social distancing and providing PPE, to achieve the required business outcome.

Data protection 

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 lawfully dismiss an employee that refuses to be vaccinated?

Employers will be legally permitted to dismiss care home staff who refuse to be vaccinated and cannot be redeployed, and the same may follow in health and social care. However, this will not apply to other sectors and employers must exercise caution when considering dismissal for this reason.

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 legally required or 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 has 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 and provide paid time off where applicable for 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 explained.

Employers in CQC regulated health and social care sectors in England should be communicating with their staff now to understand their vaccination status and to encourage those who have not been vaccinated to do so if they are not medically exempt, ahead of the new requirement to be vaccinated next spring.

Employers in the health and care sectors in England should implement robust policies which clearly outline the vaccination requirement for staff and, in relation to care homes, also for any professionals visiting the care home and that entry will not be permitted without evidence of vaccination or a medical exemption. Unlike other sectors, where there is no legal requirement to be vaccinated, if a worker in the care sector (and soon to follow in health and social care sectors) in England is dismissed because they refuse to be vaccinated, this is unlikely to be considered discriminatory - provided it is done in a fair and non-discriminatory way.

Finally, the policy should set out the employer’s data protection obligations in relation to processing special category personal data about vaccination status.

It is 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