Any decision to require vaccination (apart from when exceptions apply) should be part of a wider risk assessment that includes the other measures the employer is putting in place to protect employees.
Sean Nesbitt considers the controversial issues surrounding vaccination in the workplace. This article was originally published in the Employment Law Journal during September 2021.
The pandemic continues to have a significant impact on all aspects of life in the UK.
Increased testing and the roll-out of vaccinations provide hope that ‘an end is in sight’, or
at least the beginning of the end. At the same time, and despite most adults being double
vaccinated, data suggests that one or more new variants may transmit more easily than
other strains.
In the UK, the care sector will require workers at registered homes to be fully vaccinated
from 11 November. A 16-week lead-in period means first vaccination should occur by 16
September.
In France, laws have been passed going beyond care into nursing, hospitality and other
sectors. Both there and in Italy, there is significant unrest over the impact on civil liberties.
Meanwhile in New York, city rules require public servants like teachers to be vaccinated
before they return to work. This is a policy that goes far beyond the statement attributed to
the chief executive of Stanley Morgan that if you can come into Manhattan to eat out, you
can come into Manhattan to work.
The UK government has fought shy of such a hard-line policy, preferring to use nudge
theory to persuade the young and consumers to have the vaccine.
Comments from the transport secretary at the end of July suggest there will be no national
mandate and whether vaccination should be obligatory for staff will be left to employers’
discretion. But do they have that mandate, or want it? In the absence of clear government
rules, it is hard for employers to rely on nudge theory developed for consumers and voters
in their treatment of workers.
Some employers are starting to require employees to be vaccinated in order to return to
the office or are using the ‘COVID passport’ concept of regular testing. However, this could
result in people who would prefer to keep working from home not getting the vaccine (or
saying they have not) to avoid returning to the office.
On the other hand, some employees may claim it is unsafe to return unless everyone is
vaccinated.
With reports of an impending ‘great resignation’ by the 40% of employees said to have
been reviewing their situation over lockdown, it is important for employers to get their
strategies right.
Justifying a requirement to have the vaccine
Some of the reasons why employers may wish to require staff to get vaccinated or at least
wish to ask about their vaccination status are to:
- protect the health and safety of colleagues, customers or service users;
- meet clients’ requirements as in Kubilius v Kent Foods Ltd [2021] (see ‘Ruling on driver’s face mask objection reveals the road to a fair dismissal’ in ELJ219);
- halt the spread of coronavirus and reduce the effect of sickness absence, self-
isolation or shielding on their operations;
- assess how vulnerable the workforce is to coronavirus infection; and
- maintain their reputation as a trustworthy and safe business for customers to use.
Before trying to rely on any of these reasons, it would be sensible to review current
evidence from the government and other reputable sources, especially as the picture keeps
changing. For example, the government has adjusted the NHS app in the wake of the
pingdemic to reduce disruption to businesses. So decisions may need to be reviewed
regularly.
Could dismissal for refusing to have the vaccine be
fair?
All the above motives could be within the range of permitted reasons to dismiss within the
doctrines of:
- Boys and Girls Welfare Society v McDonald [1995] (the tribunal must apply a neutral
burden of proof to assessing the reasonableness of the employer’s decision); and
- Sainsburys Supermarkets Ltd v Hitt [2002] (the tribunal must not substitute its own
views on the reasonableness of any investigation and dismissal).
However, the basic tenets of genuineness of reason, fairness of procedure and reasonable
range of responses would still apply to any dismissal.
The employer would need to consider alternatives to dismissal, such as working from home
or unpaid leave. It would also be important not to treat vaccination as a cure all: the
employer would need to carry out a risk assessment and put health and safety measures in
place. Then it could consider whether a requirement to be vaccinated was appropriate on
top of those measures.
In addition, employees would need reasonable notice of the employer’s policy. In this
regard, the 16-week lead-in period for care homes is noteworthy. However, as it is now possible to have two vaccinations within eight weeks, as long as a centre is accessible,
notice might not need to be as long as 16 weeks.
That said, dismissal needs to be reasonable. So what grounds might be appropriate?
Misconduct
An employer might point to its duties under the Health and Safety at Work etc Act 1974
and the employee’s duty of co-operation under the Act. It might then argue that requiring
staff to be vaccinated is a reasonable management instruction (as long as it can show that
vaccination is justifiable and the employee’s refusal is unreasonable). This argument is
more likely to succeed if:
- an employee travels for work to countries that require vaccination;
- an employee works with the clinically extremely vulnerable; or
- workplace risks cannot be managed by other means.
Requiring staff to be vaccinated in a low-risk setting or in an office environment when they
can work from home until the risk from coronavirus is at an acceptable level is less likely to
be regarded as a lawful and reasonable instruction on health grounds. Possibly, the
employer might argue that it needs to bring employees back to the office for cultural or
performance reasons or to fulfil professional obligations such as training junior
accountants, solicitors or engineers. However, it would still have to show that the
employee’s refusal to have the vaccine posed a risk to themselves and others.
Incapability
This is available as a fair reason for dismissal in those sectors in which vaccination is
mandatory. Alternatively, in this situation, employers might rely on the rarely used
statutory illegality reason to dismiss.
Some other substantial reason (SOSR)
This might be available in some situations:
Contract variation
Employers might dismiss for SOSR if an employee refuses to accept a contract variation
requiring them to have a vaccination or tests. However, this route is likely to take longer
than dismissal for failure to comply with a reasonable instruction. It is also likely to incur
an obligation to collectively inform and consult.
Customer pressure or perceived pressure
For example, banks or retail environments might use this to justify a SOSR dismissal.
However, although SOSR is a softer approach than dismissing for misconduct, it can be
difficult to rely on as a reason to dismiss.
Employee conflicts
This is likely to be one of the hardest justifications there is. For example, an employee who
has an extremely vulnerable relative may only be willing to return to the workplace with the reassurance that all colleagues have been vaccinated or are at least in possession of a
COVID passport. What, then, of the rights of a philosophical anti-vaxxer? It is likely that
even if their philosophy is worthy of protection under discrimination law, it is still open to a
reasonable employer to make a choice as to which employee is most valuable to them.
Collective consultation
If an employee’s contract of employment states that their place of work is the
office, then asking them to work remotely (when there is now no government
requirement to do so) because they are unvaccinated is a potential change to their
terms and conditions. If the employer tries to force through the change, this could
give rise to unfair dismissal or constructive unfair dismissal claims. If 20 or more
employees are potentially affected, there may be a duty to collectively consult.
This will depend on whether the change comes within the definition of redundancy
or can be treated as an individual disciplinary matter.
There will also be a legal duty to consult if a trade union is recognised or
employee representatives are in place and any measures may affect staff health
and safety.
Discrimination claims
There are some discrimination claims that could arise when mandating vaccination as a
condition of returning to the office. Employees will have protection under the Equality Act
2010 if they have a protected characteristic.
Indirect discrimination claims may be an issue if the employer has a provision, criterion or
practice (PCP) of requiring employees to be vaccinated and:
- that PCP puts, or would put, an employee and others with the same protected
characteristic at a particular disadvantage;
- the employee suffers that disadvantage; and
- the employer cannot justify the PCP as a proportionate means of achieving a
legitimate aim.
Disability discrimination
Employers might face disability discrimination claims from members of staff who cannot be
vaccinated due to having an underlying health condition. Government guidance issued for
care homes states that such employees can seek an exemption from the requirement to be
vaccinated. Any employers who wish to introduce mandatory vaccination should put a
similar exception in place.
Age discrimination
Until everyone has been offered two jabs, mandating vaccination as a condition for
returning to the workplace may give rise to age discrimination claims by younger members
of staff. Younger adults aged 18 and over became eligible for their first jab at the end of
June (with the second one being offered eight to twelve weeks later). Children aged 16 and
17 are now also being offered a first jab but it is not clear yet whether they will be offered
a second dose. An employer would need to make exceptions for any younger employees to
avoid age discrimination claims.
This will be an issue of diminishing importance, though, given the reach of the vaccination
programme and availability of a second jab after eight weeks.
Sex and pregnancy discrimination
Pregnant or breast-feeding employees may be concerned that the COVID vaccines pose a
risk to their baby. Or women may be worried about the vaccines’ impact on their ability to
conceive or on the health of a future baby.
As we have seen, imposing sanctions for not being vaccinated is fraught with difficulty. It is
important to act in a reasonable and proportionate way and to use persuasion where
possible in preference to coercion. A dismissal in this situation might well be unfair.
However, the chances of a successful discrimination claim seem lower.
A bigger risk, following the recent decision in Dobson v North Cumbria Integrated Care
NHS Foundation Trust [2021], could be requiring women, who are more likely to be carers,
to return to the office. They may be able to argue that it is sex discrimination not to allow
them to continue working from home since they have shown this is sustainable.
Race discrimination
There has been a difference in take-up of the vaccine between different races and
nationalities. However, unless an employer requires vaccination in order to weed out
employees of a particular race, a discrimination claim seems unlikely to succeed.
Religion or belief
Recent decisions have found that a belief in ethical veganism and a belief that biological
sex is immutable are protected under the Equality Act.
It is possible that a genuinely held anti-vax belief could be considered equivalent to these
beliefs. However, this seems unlikely unless perhaps it is based on a belief in freedom of
expression and personal liberty and not on conspiracy theories. In this regard, the
European Court of Human Rights case of Vavricka v Czech Republic [2021] is instructive,
in which preschool vaccination was found not to breach Arts 8 and 9 of the European
Convention.
So, again, this appears to be low risk and an employer could deal with any such situation as
it arises, for example by making an exception.
Personal injury
If an employer requires employees to be vaccinated and an individual then suffers
an adverse reaction (such as anaphylaxis), they may bring a personal injury claim
against the employer. Whether such a claim would succeed would depend on
issues such as causation, but employers should bear in mind the risk of such
claims.
Return-to-work risk assessment
Before going ahead with any mandatory vaccination policy, employers would have to carry
out a return-to-work risk assessment which includes:
- the reasoning for requiring proof of vaccination and other workplace precautions;
- the fact that (assuming they need to be there) unvaccinated employees in the
workplace pose a significant risk of substantial harm, for example due to the duration
of the risk, the likelihood, nature and severity of the potential harm and the
individuals who could be affected; and
- the fact that the Delta variant is more transmissible than other strains.
Any decision to require vaccination (apart from when exceptions apply) should be part of a
wider risk assessment that includes the other measures the employer is putting in place to
protect employees. Examples will be ventilation, use of masks in communal spaces,
allowing off-peak travel, staggered arrivals and departures, continued access to remote
working facilities and social distancing.
Capturing vaccination data
Advice on vaccination and COVID status checks has been issued by the Information
Commissioner’s Office (ICO). This states that before an employer decides to check an
individual’s COVID status, it should be clear about what it is trying to achieve and how
asking for the information will help to achieve this.
Businesses will need to consider why they want the data and what they are they going to
do with it. It may be to inspire customer confidence – to be able to say to customers ‘all our
staff, or the majority of our staff, have been vaccinated’ – or it could be that the aim is to
reduce sickness absence, especially where people need to work in close proximity.
Employers will need to do a data impact assessment looking at:
- why it is necessary to capture this sensitive personal data;
- whether there are lawful grounds for processing the information; and
- how they plan to use, store and delete the data in line with UK data protection law.
They will also need to issue employees with a privacy notice (or an update to their existing
privacy notice). This should specifically identify vaccination status as a piece of sensitive
personal data which the employer is going to be processing. It should also set out the fair
reason for the processing, what the employer will do with the information and how long it
will retain the information. It is unlikely an existing broader privacy notice would be
sufficient for GDPR purposes.
The alternative would be to check employees’ vaccination status (eg via the NHS app) but
not to take any record of it. The ICO has confirmed that this would not constitute
processing of personal data: If you are only conducting a visual check of COVID passes (either a hard-copy
document or a pass held on a digital device) and do not retain any personal
data from it, this would not constitute ‘processing’. The activity would
therefore fall outside of the UK GDPR’s scope.
However, if the employer scans the QR code displayed on the pass or advises employees to
upload their status before a return to the workplace, this would constitute processing of
personal data – even if it does not keep a record:
If you make a record of any personal data, whether you conduct visual or
digital checks, then you would be processing personal data and the UK GDPR
would apply.
Visually checking COVID passes might be appropriate for allowing people to attend an event
or enter a venue, or for visitors to come into a workplace. However, if an employer wants
to check COVID status before allowing an employee to attend the workplace, it is more
likely to need to record the result, which will fall within the scope of the UK GDPR.
Also, the NHS COVID Pass terms of use state that: The service is not intended to be used by employers for the purpose of
checking the COVID-19 status of their employees.
This appears inconsistent with the ICO guidance and the care home guidance.
Practical tips
Consider introducing a vaccination support policy
This is a policy which encourages all employees to receive the vaccine when
possible. Employers might:
- offer paid time off to attend vaccination appointments (the CIPD is part of a
campaign recommending this);
- offer full pay if employees are off sick due to vaccine side effects; and
- identify centres which will give a second jab after 28 days.
Follow the available guidance
Useful sources of advice include:
Justify any mandatory vaccination policy
For example, employers might point to staff surveys that show employees are
comfortable with mandatory vaccination or anxious about colleagues not being
vaccinated. International consistency (for multinational employers) is unlikely to
be a strong justification.
Take a conservative approach
An employment tribunal will judge whether an employer’s decisions were
reasonable at the moment in time when they were taken. Attitudes may change
but cautious employers will aim to follow the mainstream views of their sector,
community and particular workforce.
