Author
Sean Nesbitt

Sean Nesbitt

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Author
Sean Nesbitt

Sean Nesbitt

Partner

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22 September 2021

Law at Work - September 2021 – 1 of 4 Insights

COVID-19: Governments advise, employers decide – can they require employees to be vaccinated?

  • In-depth analysis

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.

In this series

Employment, pensions & mobility

Diversity and inclusion reporting – unlocking the data

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by Helen Farr

Employment, pensions & mobility

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by Shireen Shaikh, Kathryn Clapp

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