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24 February 2021
Key latest developments
What alternative options are there to mandating vaccination?
Objections to vaccination
Time off for vaccination
Other vaccination issues for employers
Employers are facing many difficult and untested employment law issues as the United Kingdom rolls out its COVID-19 vaccination programme. These FAQs cover:
The government is rolling out vaccinations to the nine priority groups which are most at risk from COVID-19, comprising:
The current estimate is that everyone in the nine priority groups will have been offered the first dose of the vaccination by the end of April 2021. The remainder of the adult population is set to be offered a first dose by 31 July 2021 at the latest.
The Advisory, Conciliation and Arbitration Service (Acas) has released guidance on getting the vaccination for work, with advice for both employers and employees. The Chartered Institute of Personnel and Development (CIPD) has also produced a useful guide for employers.
Can employers make it mandatory for existing employees to receive the COVID-19 vaccine?
Mandating vaccination for employees has never been tested in UK law. It may be possible for some employers to require the vaccine for all their existing employees, but this is likely to be a minority of cases.
Acas's guidance on this issue states that it should be necessary for staff to be vaccinated only if "getting the vaccine is required for someone to do their job. For example, if staff travel to other countries for work and need vaccinations".
The key legal problems concerning mandating the vaccine are:
Therefore, employers proposing mandatory vaccination must consider:
If employers mandate the vaccine, can they discipline or dismiss employees who refuse it?
This depends on why the employee is refusing and whether they have at least two years' continuous employment and so can claim unfair dismissal.
If the objection is related to protected characteristics (eg, disability, pregnancy or belief), it could be discrimination to discipline or dismiss the employee (for further details please see "Objections to vaccination"). Most employers would likely make exceptions in these cases if this is aligned with their risk assessment.
If employees are not protected by discrimination laws, the key question is whether they have two years' service. If so, they could bring an unfair dismissal claim if dismissed for vaccine refusal and it would then be for an employment tribunal to assess the reasonableness of the employer's decision to dismiss. As discussed above, it is likely to be difficult to defend a decision to dismiss an employee for refusing a vaccine, especially outside of healthcare and similar settings. In addition to the ordinary principles of fairness, the employment tribunal would consider human rights arguments, including rights to privacy.
Before going as far as to dismiss an employee, employers would need to consider options short of dismissal, such as:
To establish a fair dismissal, employers would also need to consider how this fits in with their existing employment contracts and policies. For example, if it is a case of non-compliance with health and safety instructions, employers should check that this is cited as an example of something that could lead to dismissal in existing policy documents.
If employers mandate the vaccine, what happens if employees will not reveal their vaccination status?
If mandating vaccination, employers will need to ask employees to disclose their vaccination status. This information would be classed as special category data and should be processed only after a data protection impact assessment (DPIA) has been carried out (for further details please see "Can employers require employees to inform them of their vaccination status?").
Failure by employees to disclose their vaccination status to their employer would need to be treated as a disciplinary matter, in the same way as employees' explicit refusal to accept vaccination.
What about contractors, agency workers and visitors to the workplace?
Where contractors and agency workers work alongside employees, it will be difficult to show any substantial reason for a difference in treatment. Contractors and agency workers are also protected under discrimination law, so the same considerations should apply. With visitors, it may be easier to point to key differences – for example, they may be allowed to access only one part of an office area where no employees are based and strict COVID-19 safety measures are in place.
Can employers strongly encourage employees to accept vaccination?
Yes, and all employers should be doing so.
Across all settings, employers are obliged under the Health and Safety at Work Act 1974 to take reasonable steps to reduce any workplace risks. Encouraging the uptake of the vaccination among employees to protect themselves and everyone else at the workplace is one way to reduce the risks.
Should employers have a vaccination policy?
Yes, if employers are offering incentives for employees to take up the vaccine (see below) or (unusually) mandating it. Employers would then use the policy to explain and communicate their approach, along with the terms of any incentives offered. For the majority of employers, a vaccination policy will not be so important, but they may nonetheless find it helpful to explain the organisation's stance on vaccination and their objective that as many employees are vaccinated as possible.
A vaccination policy may also help with handling workplace disputes regarding vaccination. Employers could consider requesting employees not to ask each other about their vaccination status, with a failure to comply being treated as a disciplinary matter. Similarly, employees who are spreading untrue vaccination myths could also face a disciplinary process outlined in the policy.
Can employers offer incentives for employees to accept vaccination?
Potentially, yes. Offering incentives to encourage vaccine take-up is a commonly discussed approach in the United States, but it remains to be seen whether it becomes common practice in the United Kingdom where general take-up of the vaccine is currently high and incentives may not be needed.
Incentives could be vouchers, cash or simply allowing an employee paid time off to attend their vaccination appointment (see further below).
If there is low take-up in a workplace, employers should first try to promote the benefits of vaccination (for both employees and wider population) before turning to incentives. If uptake remains low, offering incentives is a less risky approach than mandating vaccination, but the concept is not properly tested under UK law and would still involve a degree of risk. Allowing paid time off to attend vaccination appointments is likely to be much lower risk than offering vouchers or cash.
Employers opting for incentives would need to consider their approach to employees with protected characteristics (eg, pregnancy, disability or belief) who cannot receive the vaccination. It may be possible to justify offering incentives only to employees who have been vaccinated as a proportionate means of meeting legitimate health and safety aims.
Can employers pay for employees to receive the COVID-19 vaccine privately?
This is not currently an option as the vaccine is not commercially available and it appears unlikely it will become available to purchase for some time.
Employers requiring mandatory vaccination would need to fund vaccination for employees once available. There is some suggestion that a COVID-19 vaccine may be required annually, like the flu vaccine. In this case, employers should consider budgeting on the basis that vaccination will be an ongoing annual cost.
This would not be a taxable benefit if the cost does not exceed £50 and, to date, none of the widely used vaccines cross this threshold. It is possible that, if the cost exceeds this, the government will provide for an exemption.
Can employers require all new starters to have received the vaccine as a condition of employment?
This is legally risky, but less so than mandating vaccination for existing employees because there will be no risk of unfair dismissal claims from potential new recruits. However, new recruits still have the right not to be discriminated against because of protected characteristics. This means that employers opting for this sort of recruitment policy will need to consider:
Can employers manage employees' return to the workplace based on who has been vaccinated?
Potentially, yes. Some employers with workforces which can work from home are considering opening the workplace on a phased basis to those who have been vaccinated. At present, it is unclear whether this will be aligned with government guidance, which remains that everyone who can work from home should do so.
Employers would also need to consider when it would be appropriate to introduce such a requirement, given that most of the younger adult population will not receive a first dose until Autumn 2021. Introducing this policy before all adults have been offered vaccination would be indirectly discriminatory against younger employees who want to return as soon as possible but are being kept at home. A return-to-office policy based on vaccination status could also discriminate against employees with other protected characteristics (eg, disability, belief or pregnancy). Employers could potentially defend such a policy as objectively justifiable, but this will involve considering any discriminatory impact alongside their risk assessments to determine whether a policy of allowing only vaccinated individuals into the workplace is reasonable and proportionate. This analysis is likely to change over time.
If employers mandate the return of vaccinated employees, this could also cause issues with employees who have been vaccinated but are unwilling to return.(1) Employers will need to take particular care in relation to employees with disabilities, for whom remaining on a homeworking arrangement might be a reasonable adjustment.
Before processing any data regarding vaccination status, employers would need to carry out a DPIA as this would be classed as special category data. The DPIA would need to consider why such data is needed. Given that all employers must undertake a risk assessment and take measures to make their workplace COVID-19-secure, it is reasonable to think that most employers operating workplaces will have a legitimate reason to collect such data, certainly in the short term. Nonetheless, employers should collect only the limited information required and hold it for no longer than necessary. Employees should be told:
The situation should be kept under continuous review – if, for example, herd immunity were to be established, there would be no reason to maintain a vaccination register.
What is the situation where employees refuse vaccination on medical advice?
At present, the only publicised recommendation to avoid vaccination on medical grounds is for those who have had a serious allergic reaction to any of the vaccine ingredients. However, some individuals with disabilities may need to consult with their own doctors and receive different advice. If such employees are disabled for the purposes of the Equality Act 2010, their choice not to get vaccinated could be "something arising" from that disability. This would mean that any less favourable treatment of such employees because they are unvaccinated would be discriminatory, unless objectively justified.
What if employees have a needle phobia?
This phobia is surprisingly common. Most individuals with such a phobia would probably struggle to bring themselves within the protected characteristic of disability for Equality Act purposes. The definition requires a physical or mental impairment that has a substantial and long-term negative effect on an individual's ability to do 'normal daily activities', which are defined in the Equality and Human Rights Commission Code of Practice as "activities which are carried out by most men or women on a fairly regular and frequent basis". It may be difficult to argue that receiving a vaccination is a normal day-to-day activity.
Nonetheless, someone suffering with severe needle phobia could experience an extreme anxiety episode triggered by the prospect of vaccination, which might result in a disability under the Equality Act. It may be that the National Health Service (NHS) will provide support or treatment to help affected individuals get through the process of receiving the vaccination.
What about pregnant or breastfeeding employees?
At present, the advice is that pregnant individuals should not routinely receive vaccination. It is only recommended for pregnant individuals who are at high risk of contracting COVID-19 or suffering serious complications therefrom. Vaccination can be received while breastfeeding, but there is no data on the safety of the COVID-19 vaccine in this context.
Employers should be ready to make exceptions for employees who fall within this category. Requiring employees who can work from home to continue doing so may be the easiest action to take. Pregnant individuals remain classed as clinically vulnerable. Even if vaccinated, given protection is not 100% guaranteed, employers should take great care before requiring them to move out of the safest on-site roles or to return to the workplace if they are homeworking. Employers must undertake specific risk assessments for pregnant employees and may need to:
What is the position on employees who refuse vaccination because of their religion or beliefs?
The Equality Act protects employees against discrimination on the grounds of religion or beliefs. While a small number of religious groups disapprove of vaccinations, most religions do not disagree with vaccination in principle. There had been some concern over what ingredients or stabilisers were used in the production of COVID-19 vaccines, but none of those that have been rolled out in the United Kingdom to date contain any animal-derived ingredients (or egg). Many religious leaders have urged their followers to accept vaccination.
Vegans may disagree with vaccinations on the basis that they will inevitably have been tested on animals. Ethical veganism has previously been found by an employment tribunal to amount to a belief, capable of being protected under the Equality Act (for further details please see "Vegans protected by Equality Act: what does it mean for employers?"). Therefore, some ethical vegans may refuse vaccination, although not all animal rights organisations are against vaccination in principle. (For example, the organisation People for the Ethical Treatment of Animals states that refusing medicine tested on animals will not spare any animals the same fate in the future and encourages campaigning for a change in the law rather than failing to follow health advice.)
While there will be some individuals with protected beliefs against vaccination, the latest announcement on vaccine ingredients combined with religious leaders and campaigning groups advocating for vaccination means that the likelihood of valid belief-based objections is now significantly reduced.
As with employees who are advised against vaccination on medical grounds, employers will need to consider what steps to take with employees who genuinely object on the basis of religion or belief. This will depend on their risk assessments and overall policy approach. For example, if employers are operating a mandatory vaccination policy, they will need to consider whether they can exempt individuals with certain religion or belief-based objections or require or allow homeworking if this is possible. Other options, such as not recruiting the individual or dismissing them, may be difficult to justify as proportionate.
Employers should be careful not to judge or stereotype employees. Just because an employee is part of a religious group or is an ethical vegan does not automatically mean that they will refuse to be vaccinated, so this should not be assumed. Equally, employers should not assume that the reason for someone's refusal is what the employer perceives their religion to be.
What about 'anti-vaxxers'?
It is not outside the realms of possibility that an anti-vaccination belief could be protected by itself, but this is unlikely (for further details please see "Vaccination for COVID-19 – can employers require employees to be vaccinated?"). In order to qualify for protection, the belief must meet several tests, such as it being worthy of respect in a democratic society and attaining a certain level of cogency and cohesion. There are a wide range of different reasons that people may have for holding anti-vaccination views. It was for this reason that an employment tribunal previously decided that vegetarianism was not a philosophical belief.
A more specific belief against vaccinations may be protected if the individual can explain it as part of a cohesive and serious conviction, rather than a point of view based on the present state of information available, although this will be difficult to prove.
What if employees are hesitant about vaccination based on other reasons?
Some employees may cite a variety of reasons for their decision not to be vaccinated, potentially based on information that they have read online. These individuals will not typically be protected under discrimination law as these types of reason will not fall within the ambit of the Equality Act. However, they would still have unfair dismissal rights (including constructive dismissal) if they have over two years' service. Therefore, employers should tread carefully before taking any action that could breach the mutual duty of trust and confidence or deciding to dismiss an employee.
For employees who are citing possible 'fake news', the CIPD guidance has some useful suggestions on how employers can play a role in promoting a persuasive case for vaccination and counteracting misinformation.
Some employees may refuse vaccination as they may either believe or know that they have already had COVID-19, but the official medical advice remains that even individuals who have had COVID-19 should be vaccinated. This is because reinfection is possible and it is unknown affirmatively how long any 'natural' immunity acquired from having COVID-19 lasts.
Must employers allow employees time off during working hours to receive vaccination?
There is no general right in law for an employee to have time off for medical appointments, but most employers will likely allow time off for COVID-19 vaccinations and there are many cogent reasons to do so:
There is no legal requirement for employees to be paid for time off, although there are calls for this right to be introduced. Some employers may wish to offer paid time off as an incentive (see above).
Can employers ask employees to change their appointment to a more convenient time?
Wherever possible, employers should allow employees to attend their vaccination at the time slot that they have been allocated. Asking employees to reschedule their appointments outside of working hours may reflect badly on the employer, given the administrative burden on the NHS of having to rearrange appointments.
However, if employers have a valid reason not to allow an employee to attend their designated slot, it may be possible to ask the employee to reschedule the appointment – for example, if they do shift work that cannot be covered by anyone else or work on a site away from home. If employees are offered a choice of appointment times, it would be reasonable for the employer to ask them to choose a time that minimises disruption to the business.
How should employers handle disputes between colleagues over vaccination?
This could become a tricky area for HR professionals in future. For instance, there could be situations in which employees are uncomfortable working alongside other colleagues who have decided to be unvaccinated and make their discomfort known. Similarly, employees may spread misinformation about the vaccine and encourage colleagues not to get vaccinated.
These situations could become especially fraught if they involve characteristics that are protected under the Equality Act – for example, if an employee is inappropriately grilled on how their decision about vaccination fits with their beliefs or if an employee with a vulnerable disabled child at home accuses colleagues of being irresponsible for not taking up the vaccine. As with other issues around clashes of rights in the workplace, this would require careful handling. Employers may need to remind employees to be sensitive and aware of the diversity of opinion that is likely to exist within the workplace.
Can employers liable for side effects of vaccination?
This may be a concern for employers which are mandating the vaccine or, in future, providing the vaccine (as and when it becomes commercially available). Such employers are unlikely to face liability for side effects of an approved vaccine unless they could somehow be found to have acted negligently. Employers typically provide flu vaccines without these concerns arising.
Nonetheless, employers which plan to mandate the COVID-19 vaccine at an early stage should raise this question with their insurers. The COVID-19 vaccination has been added to the government's vaccine damage payment scheme.
For further information on this topic please contact Lucy Lewis, Colin Leckey or Helen Coombes at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com, firstname.lastname@example.org or email@example.com). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) This will raise similar legal issues to those discussed here.
(2) For further discussion of risk assessment and pregnant workers, see "Coronavirus – FAQs on staffing decisions when reopening workplaces".
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