With many staff returning to the office during the Autumn, employers will be turning their attention to making the workplace environment as safe as possible for everybody, which may include considering whether staff have been vaccinated against COVID-19 or not.
In the absence of vaccination becoming a legal requirement (currently it will only be mandatory in the care home sector with effect from 11 November 2021), an employer cannot legally force an employee to be vaccinated without their consent – to do so could amount to criminal assault.
For any employer considering a policy for COVID vaccinations in the workplace there are some key considerations to be aware of, and it’s also critical to plan in advance how best to communicate with staff about this subject.
Key considerations for employers
From a legal point of view attempting to make vaccines a mandatory requirement in the workplace or treating employees who refuse vaccination differently could create a discriminatory environment if individuals can rely on certain protected characteristics (explained in the next section).
Requiring an employee to be vaccinated without their consent as a condition of providing work could also amount to a breach of contract, entitling them to resign and claim constructive dismissal.
Therefore, it’s important for any employer considering imposing a mandatory vaccination policy, or a policy of different treatment for vaccinated/unvaccinated employees to be prepared to be flexible to take account of individual circumstances and to have regard to the following:
– Vaccination is not suitable for everyone (see the section below)
– Vaccination is not a substitute for COVID secure measures in the workplace
– Imposing a mandatory vaccination requirement could result in negative publicity which could have a detrimental impact on business profitability, employee retention and recruitment
– Consultation with workplace H&S reps and trade unions where relevant is likely to be required
– There are data protection issues around requesting/verifying/logging the vaccination status of employees
Protected characteristics and discrimination issues
Making vaccines mandatory in the workplace, for existing employees or job applicants can put certain individuals at an immediate disadvantage, resulting in indirect discrimination.
There is also a risk of direct discrimination if an employer requires vaccination of an employee or chooses to treat them less favourably because they are unvaccinated. All of which can lead to a legal challenge from the employee if they can show they have one of the following protected characteristics:
The government has prioritised vaccinations by age groups, therefore younger people have had to wait longer to become eligible for theirs.
Some of the vaccines are not deemed suitable for those with suppressed immune systems or severe allergies. There have also been cases of refusal for mental health reasons.
Government advice around whether pregnant women should be vaccinated changed over time, causing these women to become cautious about getting vaccinated.
Vaccine take-up has been lower in areas with a higher proportion of ethnic minorities.
Some religious beliefs may hold moral objections to the vaccine.
It’s also worth recognising that those trying to conceive or undergoing assisted fertility programs may also choose to delay vaccination over worries about how it may affect their situation.
Different treatment for unvaccinated staff
Where different treatment of employees can be justified as a proportionate means of achieving a legitimate aim, employers may think about applying different terms and conditions (such as pay) on employees who can’t fulfil their contractual duties due to their unvaccinated status. This could also apply to individuals whose refusal of the vaccination is not related to a protected characteristic.
It remains to be seen what approach the courts and tribunals will take to disputes arising between employees and employers as a result of such action.
Encouraging vaccinations in the workplace
An employer has a duty to take reasonable care of the health and safety of their employees and to provide a safe workplace. Focusing on how best to achieve voluntary take-up of the vaccine amongst staff, alongside other alternative measures to reduce the risk of COVID-19 may be more effective than trying to impose vaccinations on staff.
To encourage voluntary take up of COVID vaccinations in the workplace an employer could consider taking some of the following steps:
– Sharing useful information on the facts about vaccination
– Offering time off to attend vaccination appointments
– Showing support for vaccination from senior leadership
– Encouraging staff to share their vaccination experiences
– Introducing regular testing for frontline staff
– Completing regular health and safety reviews on COVID secure guidelines
– Supporting working from home in extreme cases to minimise risk to vulnerable individuals
– Being open about the potential advantages/disadvantages to support informed decision making
Public Health England have produced an Employer Guide which may also be useful.
This is a new and complex situation that UK employers have not had to consider before, and as a result it is important to be clear on the reasons for a vaccination policy. It’s also vital to consider the risks and practical implications involved and to prepare well for communication to employees and their representatives.
If you have any questions on this topic or need advice on a specific case then we would be happy to help, you can get in touch with us here.