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12 May 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 all adults in the United Kingdom and expects all adults to have been offered a first dose by the end of July 2021.
On 16 April 2021 the Joint Committee on Vaccination and Immunisation issued new advice for pregnant women, advising that vaccination is appropriate and recommended. Previously, vaccination was recommended in pregnancy only for women at a high risk of catching the virus or due to a pre-existing medical condition.
On 14 April 2021 the government launched a consultation on making vaccination compulsory for those working in care homes (allowing an exemption for those with a medical condition preventing vaccination). The government has expressed a desire to change the law quickly with the consultation closing on 21 May 2021. The government is continuing to review whether it may be necessary to extend any policy to other parts of the adult and social care sectors.
In its Spring 2021 COVID-19 Response, the government published its roadmap out of lockdown in England. The roadmap sees restrictions gradually lifting in a sequence of steps, with indicative dates for each step but the flexibility to proceed more slowly if required. The vaccination programme is key to paving the way for restrictions to be lifted in line with the proposed timetable.
The government is exploring to what extent COVID-status certification could play a role in reopening the economy, reducing restrictions on social contact and improving safety. COVID-status certification involves using testing or vaccination data to confirm that people have a lower risk of transmitting COVID-19 to others. The government's review is considering whether COVID-status certificates could be used to enable access to settings or a relaxation of COVID-secure mitigations.
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. Some employers may be able to require the vaccine for all of their existing employees. This is likely to be a minority of cases at the moment but the picture may change in future.
The key legal problems concerning mandating the vaccine are:
Therefore, employers proposing mandatory vaccination must consider whether they have a fair reason to dismiss employees who refuse vaccination but have more than two years' service. If employers could show that having a vaccine is the most reasonably practicable way of mitigating the risk of COVID-19, having carried out a risk assessment, they could in theory mandate the vaccination as a health and safety requirement. Employees who refuse the vaccine could potentially be dismissed for a health and safety breach. This is most likely to apply in the healthcare sector or other settings in which COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations. However, the government is the largest employer in health and care settings and is not making the vaccination mandatory, so employers would need a strong reason for taking a different stance in their organisation.
Vaccines may also be needed for entry to some overseas locations. If the employee's role involves travel to those locations, the vaccine is likely to be a necessary job requirement and the employer is likely to have a fair reason for dismissing any such employee who refuses the vaccine.
Even if the vaccine cannot be said to be a travel or health and safety necessity in the particular workplace, some employers may also be able to establish that having a compulsory vaccination policy is nonetheless reasonable in the circumstances of their business or for certain employees. Although customer confidence could be improved if all staff are vaccinated, it's unclear if this alone would be enough to establish fair dismissals. However, employers may be able to rely on wider reasons about the role expected to be played by the vaccine in protecting against infection and transmission and achieving herd immunity. This is currently an untested area. Making exceptions for medical or belief reasons. Not doing so could lead to discrimination claims from employees with protected characteristics (see "Objections to vaccination" below) or potentially make it more difficult for an employer to justify the dismissal of an employee with more than two years' service.
Employers must also consider whether there are any other discrimination risks. For example, mandating the vaccine before all adults have been offered the opportunity to be vaccinated would discriminate against younger employees. Mandating the vaccine could potentially also discriminate against black, Asian and minority ethnic groups if it turns out that they are more likely to refuse vaccination (although, at present, it is unclear whether a vaccination policy would put any ethnic group at a disadvantage and the latest data suggests an increasing uptake of the vaccine within these groups). Where these discrimination risks are present, employers must be able to justify their policy by demonstrating that they have a legitimate aim (eg, health and safety) and that mandating the vaccine was a proportionate means of achieving this.
Can employers require all new starters to have received the vaccination as a condition of employment?
This is not without legal risks which would need to be evaluated, 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 employees 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 the following:
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 in light of the employee's rationale for refusing the vaccine and the possible alternatives. In addition to the ordinary principles of fairness, the employment tribunal would consider human rights arguments.
Before going as far as to dismiss an employee, employers would need to consider options short of dismissal, such as:
Whether these alternatives are reasonable and sustainable may depend on the circumstances at the time (see "Testing and other measures as alternatives to vaccination" below).
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.
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. However, they will have no right to claim unfair dismissal, so the legal risks of a mandatory policy are significantly reduced. 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.
What should employers be thinking about if they want to mandate vaccination?
It is unrealistic for most businesses to consider enforcing a mandatory policy until Autumn 2021 at the earliest, subject to the progress of the vaccine roll-out (including second doses). Some businesses may wish to act now to mandate that employees accept the vaccine when offered to them, particularly in new starter contracts (see above), whereas others may prefer to wait. The outcome of the government's review into COVID-status certificates is expected in June 2021 and some employers may wish to wait for this.
This will be different for every business according to its own culture. Some businesses may prefer to set out the stance that they expect they will be taking now as a method of encouraging employees to accept vaccination when offered, while others may prefer to adopt a policy of encouragement and paid time off to attend vaccination and wait to analyse whether there is a take up problem in their workforce before considering mandating.
Employers may wish to use this time to explore what alternatives there are to mandating vaccination and trial different approaches to reduce the number of unvaccinated employees (eg, offering incentives to vaccination and putting together an objective positive messaging campaign). Workplace testing schemes may also be an appropriate alternative to vaccination for some employees.
Establishing rationale and evidence base for mandating vaccination
The evidence about the role played by the COVID-19 vaccine in preventing both infection and transmission is relatively limited now but is expected to become stronger in time. Employers should also think about evidence of why alternatives are not reasonable or sustainable.
Workforce impact and exceptions
Employers should consider exceptions for employees who cannot accept the vaccine due to medical or belief reasons (see below). Employers should also consider completing an equality impact assessment to explore whether mandating the vaccine puts any protected group at a disadvantage. If it does, the policy may need to be justified irrespective of the reasons why it is putting that group at a disadvantage or there is the extra risk of successful claims from those in that protected group. In any case, it may affect the diversity of the workplace which should be carefully considered.
This will help to establish the reasonableness of the employer's approach.
What process should employers follow if they want to mandate the vaccine for existing employees?
There are broadly two options and the best option will vary by employer:
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.
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 manage their return to the office 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 the end of July 2021. Introducing this policy before all adults have been offered a 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 or belief). 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 an employer mandates (as opposed to merely permitting) the return of vaccinated employees, this could also cause issues with employees who have been vaccinated but are unwilling to come back.(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.
Can employers require employees to inform them of their vaccination status?
Probably, but this will depend on what role vaccination status plays in employers' risk assessment. The Information Commissioner's Office (ICO) has now updated its advice to organisations which are collecting vaccination status data confirming that collection of this data must be necessary and relevant for a specific purpose. However, it confirms that if there is a good reason for collecting the information, there is a lawful basis to process the data.
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. However, the ICO warns that keeping vaccination status data for monitoring purposes only would be more difficult to justify.
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.
Testing and other measures as alternatives to vaccination
The government's review into COVID-status certification is exploring whether confirmation of vaccine or testing status could be used to enable access to settings or a relaxation of COVID-secure mitigations, suggesting that a recent negative test could be classed as equivalent to vaccination for some purposes. With the roll-out and increasing accuracy of lateral flow testing, regular testing could become widespread before all adults are fully vaccinated and could continue for some time afterwards. The government is encouraging employers to adopt workplace testing programmes and is providing free test kits. It is possible that employees who do not wish to take the vaccine (or are advised against doing so) may propose testing as an alternative, especially if the employer is already running a testing programme (for further details please see "Workplace testing – FAQs for employers").
Various COVID-19 safety measures (eg, social distancing, mask wearing and hand sanitising) are not currently alternatives to vaccination (they are still in place for everyone, irrespective of vaccination status) but this may change over time. The government has committed to review the need for social distancing and other measures ahead of Step 4 in its roadmap out of lockdown (pencilled in for 21 June 2021) and may conclude that these safety measures no longer need to be adopted by everyone. At that point, there may be questions about whether such measures (which can be difficult for business) can or should be adopted by employees who are not vaccinated.
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.
Care should also be taken where individuals have received medical advice to avoid specific vaccines in favour of others (eg, pregnant women are advised to receive the Pfizer or Moderna vaccine and people with a history of blood clotting problems are advised to avoid the AstraZeneca vaccine). There may be a delay in these individuals receiving vaccination due to appointments being rearranged or potential supply issues. There may or may not be a protected characteristic, such as disability, present in such cases.
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 employees?
As of 16 April 2021, the advice for pregnant women has changed and vaccination is now recommended, albeit with a specific vaccination such as Pfizer or Moderna. This is a significant change from the previous advice which was that routine vaccination should not be offered to pregnant women (unless at high risk of contracting the virus or vulnerable to complications due to pre-existing medical conditions).
However, despite the change in official guidance, some women may be hesitant about accepting vaccination given that the change in official advice is based on data from 90,000 cases in the United States. While the risk of an indirect discrimination claim has been greatly reduced by the change in guidance, there is still a potential for women to argue that there is less evidence available for them to base a decision to accept vaccination. Whether a tribunal would accept this argument in practice remains to be seen.
Depending on their risk appetite, employers should consider whether they want 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 that 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 belief?
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 act. Some ethical vegans may therefore refuse vaccination, although not all animal rights organisations are against vaccination in principle. (For example, the US-based 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 and will not be a consideration for most employers.
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.
Finally, employers should note that some Muslims may choose not to take the vaccine during daylight hours in Ramadan. The British Islamic Medical Association has published guidance that taking the vaccine would not invalidate the fast, but nonetheless it has been reported that certain urban centres may increase evening vaccination slots to mitigate any potential drop-off in vaccine uptake.
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 do not want to be vaccinated because of the risk of blood clots?
This is currently an issue with certain specific vaccines, particularly the AstraZeneca vaccine. It is important to stress that employers cannot force employees to be vaccinated against their wishes, so if an employee decides not to be vaccinated because of the risk of rare blood clots, their employer is not in a position to compel them and can only point them towards current NHS guidance and advice. For employers which intend to mandate the vaccine, the key question is whether they can establish a strong enough reason to justify the dismissal of such an employee if they have more than two years' service (an issue which is untested but explored above). If the employee's concerns relate to a medical condition or history, they may be disabled under the Equality Act, which would result in them having additional rights not to be discriminated against, but in those circumstances the individual is likely to be offered an alternative vaccination.
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. In practice, many employers will allow paid time off for medical appointments. 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.
What if an employee feels unwell after getting the vaccine?
Some employees may experience mild side effects after the vaccine, such as a headache or feeling sick. If an employee is so unwell that they cannot work, they would be entitled to sick leave. Advisory, Conciliation and Arbitration Service guidance recommends paying full pay in these circumstances and adjusting any trigger levels in attendance management policies so that this type of short absence for side effects does not count towards the trigger. This is to ensure that employees are not deterred from getting vaccinated by the prospect of having to work if they experience side effects. Statutory sick pay would not generally be payable since the total period of incapacity is unlikely to be as long as four days.(3)
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 be liable for serious or long-term 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 long-term or serious 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".
(3) For further details please see "Sickness absence and sick pay during the Covid-19 pandemic - FAQs for employers".
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