As the country starts to open up from lockdown, employers still face some tricky questions relating to COVID-19 vaccination. Although take up of the vaccine to date has been high in the UK, recent concerns regarding safety of some of the vaccines and the lower risk of the virus to younger people may impact on the numbers being vaccinated going forward.

Are vaccinations mandatory for any workers or employees?

Vaccination is not yet mandatory in any sector. However, the UK Government is undertaking a consultation on making vaccination a condition of deployment in older adult care homes in England and it is possible that the other home nations will also consider this.

Can an employer insist on vaccination anyway?

It may be possible for a minority of employers to require vaccination for existing employees - for example those in the health and care sector. However, it is of note that the UK Government is the biggest employer in health and care settings in the UK and, other than in older adult care homes as highlighted above, they have not taken steps to require vaccination. Employers who enforce more stringent requirements on vaccination will therefore need very strong arguments for doing so. 

Could it be argued that mandated vaccination was a reasonable health and safety requirement?

While this may be possible, it would only be in very limited circumstances. Vaccinating an employee is an invasive (and not entirely risk free) step to take. Most employers are likely to struggle to demonstrate that, having completed a risk assessment, vaccination was the most reasonably practicable way to mitigate risk in the workplace. 

What are the risks related to insisting on vaccination?

The difficulties with insisting on vaccination arise when an employee refuses to comply. Taking steps to discipline or dismiss the employee could result in claims for unfair dismissal (for employees with more than two years' service) and/or discrimination. These risks increase significantly where an employer cannot demonstrate that the need for vaccination was genuinely essential for continued employment. Even where vaccination is essential, employers will have to demonstrate that they acted fairly and reasonably before dismissing an employee with over two years' service for refusing vaccination. This would include, for example, considering moving an employee to an alternative position within the organisation where vaccination may not be essential.

Employers are also going to have to investigate the reason why the employee is refusing vaccination.  Not doing so risks discrimination claims - which would cover actions short of dismissal as well as dismissal - from employees who have protected characteristics. Most obviously there may be issues around disability and pregnancy but age, religion and belief and race discrimination claims are also possible. 

Employers may be able to justify an apparently discriminatory policy requiring vaccination. They would need to be able to demonstrate a legitimate aim - possibly health and safety - and that mandating vaccination was a proportionate way of achieving that aim. 

Some employees' reasons for refusing vaccine may not be related to protected characteristics under the Equality Act 2010 but those with two years' service will also have protection from unfair dismissal.  Failure to investigate and consult with an employee regarding their refusal would likely render a dismissal unfair, as would a failure to consider alternatives to dismissal. Given how few employers are likely to be able to show mandatory vaccination is necessary for continued employment, it is likely that the majority of employers will struggle to defend an unfair dismissal claim based on an employee's refusal to be vaccinated. 

Making vaccination a requirement for continued employment could also amount to a repudiatory breach of contract entitling the employee to claim constructive dismissal. In some cases an employee may also argue that such a requirement was a breach of their human rights.

Can the risks be mitigated?

For employers who can justify a policy requiring vaccination, there are a number of possible ways to mitigate the risk of claims. Exemptions to the requirement for vaccination could be applied to employees with protected characteristics. Practical steps such as moving the employee to a role that does not require vaccination could be taken, but this would require consultation and consent.

What if an employee refuses to tell us whether they have been vaccinated?

Employers could potentially take disciplinary action if an employee refuses to confirm their vaccination status, however, they will encounter similar problems as those that arise when disciplining an employee for refusing to be vaccinated. Employees who lie about whether they have been vaccinated or not will be easier to discipline as the focus of the disciplinary charge would be dishonesty rather than the issue of vaccination itself.

Can we incentivise employees to be vaccinated?

Incentivising employees to be vaccinated is likely to be lower risk than dismissing them for not doing so. However, issues may arise where an employee who would not otherwise have chosen to be vaccinated does so and then suffers serious side effects. Discrimination issues also arise for those who are not able to be vaccinated. Positively incentivising is not therefore risk free.

What about new recruits?

There is no unfair dismissal risk if an employer refuses to employ an applicant who refuses to be vaccinated, however, the discrimination risk will still arise when dealing with applicants and new employees.

Can I retain data about which employees are vaccinated?

If you are obtaining and/or retaining employee information on their vaccination status, you will need to do so in a way that complies with data protection requirements. As vaccination data would be classed as special category data, employers should carry out a data protection impact assessment (DPIA) prior to collecting the information. Your reason for recording vaccination status must be clear and compelling and must not result in any unfair or unjustified treatment of the employees. The information can also only be used for purposes that the employee would reasonably expect. More information can be found on the ICO website.

How can vaccination be encouraged?

Educating staff to the potential advantages and disadvantages of vaccination to assist them to make an informed decision and providing paid time off to be vaccinated are low risk ways of encouraging employees to get the jab.

What if side effects prevent an employee from attending work?

If an employee is unable to attend work following their vaccination then an employer's usual sick pay arrangements would kick in. It would also be open to an employer to enhance sick pay arrangements in these circumstances if they wish to do so - and this may encourage workers to get the vaccine. The ACAS guidance on getting the vaccine for work also suggests not counting vaccine-related absences towards any absence management trigger system the employer may have.  

What alternatives are there to vaccination?

The UK Government is currently encouraging employers to adopt workplace testing programmes.  In Scotland there is guidance available for employers running private asymptomatic testing among staff.  In some cases employers may qualify for free lateral flow tests. Such programmes do not replace the need for other mitigation measures such as masks, social distancing and hand washing, which should be continued.