Can you require your workforce to be vaccinated?
Background: Government mandated vaccination against COVID-19 for health and social care sectors
The Government’s actions from its:
- initial decision (consulted on in September 2021) and confirmed on medical evidence support grounds (in December 2021) to mandate coronavirus vaccination in the health and care sectors; and
- later reversal of that view due to the changed medical position (announced on 31 January 2022 and effective on 15 March 2022) will be highly influential on the ability of employers in other high-risk coronavirus work environments to justify requiring their staff to be vaccinated.
The Government’s stated view remains that those working in the health and social care sectors have a professional duty to be vaccinated against COVID-19.
However, the position is now that there is no legal requirement for workers 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 mandatory 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.
Mandatory vaccination requirement 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 their 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 workers 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.
Timing of the requirement and its justification are critical. There have been cases where this was justified at the time. While some employers may have been, and in appropriate circumstances may 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.
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 and update their staff privacy notices.
Can we lawfully dismiss an employee that refuses to be vaccinated against coronavirus?
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 coronavirus vaccination.
Refusal to comply with a reasonable management instruction to be vaccinated could amount to misconduct justifying dismissal. However, a tribunal is unlikely to consider a coronavirus 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 against coronavirus, 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 coronavirus 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 coronavirus vaccination policy. Policies can encourage staff to be vaccinated and provide paid time off, where applicable, for staff to have the coronavirus vaccine and should also acknowledge that it is not appropriate for all staff. Where coronavirus vaccination is a reasonable requirement of a job, any consequences of refusal should be explained before action is taken.
- Health and social care employers may need to decide if they will have their own vaccination requirement in their recruitment policies and job adverts, update their candidate privacy notices and properly understand any medical exemptions during the recruitment process.
- Any 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 coronavirus vaccination policy to mitigate the risks summarised above.
If you are an employer who has any queries regarding mandatory vaccination of staff against coronavirus, please contact Jennifer Mansoor.