Vaccinations: employer obligations and employee rights
8 February 2021: As the nationwide COVID-19 vaccination programme gathers pace, employers are beginning to assess the dilemmas and responsibilities facing them if an employee refuses to be vaccinated.
Just over 10 million people have received their first vaccine dose in the largest vaccination programme in British history, with the UK closing in on the 15 million mark to hit by mid- February – a figure which represents the most vulnerable who are at a high risk of dying from COVID-19.
As this figure approaches and the programme moves into the general workforce, more employers are beginning to assess the legal dilemmas around employee rights and employer responsibilities if an employee declines to be vaccinated.
Can employers mandate vaccination?
According to employment law experts, employers cannot insist that employees are vaccinated unless the circumstances are exceptional. For example, employers in the social care sector may be able to give reasonable instruction for employees to be vaccinated as they are working with high-risk, vulnerable people.
Other sectors such as professional services don’t have the same strength of argument for insisting their workers are vaccinated, as lockdown working conditions have demonstrated that work can often be done effectively from home.
“Employers should encourage, and not compel, employees to have vaccinations”, said Rachel Suff, CIPD Employee Relations Adviser.
Suff continued: “The wisest course of action is for employers to encourage, engage and explain, also considering other options, such as the use of PPE, social distancing and working from home for those who cannot be vaccinated.
“If the employer publicises the benefits, by providing factual public health information, it’s likely that some people will make an informed decision based on the need to protect themselves and their colleagues.”
How can employers encourage a vaccine?
Employers may choose to carry out a campaign to encourage employees reluctant to vaccinate to change their minds, especially in at-risk sectors such as food manufacturing, cleaning, public transport, or essential retailing.
ACAS Senior Adviser Tom Neil said: “If an employer wishes to introduce new changes such as requiring staff to take the COVID-19 vaccine as a condition for returning to work, then these changes should be done in consultation with staff or a recognised trade union. The government’s current advice is that people can only leave their home for work if they cannot reasonably work from home.”
Employers should note that such a campaign will be less effective if contractors and other visitors to their premises are not required to have had a vaccination.
Neil added: “The government has indicated that it may be September 2021 until everyone in the country has been offered the vaccine. So, employers need to be pragmatic about the fact that it may be some time before all of their staff are offered the vaccine.”
They may also want to try to make it as easy as possible for staff to get the vaccine, for example offering paid time off to be vaccinated.
ACAS adds that employers should only consider seeking to require staff to take the vaccine if it is essential to enable them to carry out their job. For example, if the vaccine is needed as a condition of travel into another country.
Where an employer thinks a vaccine will be necessary, they should talk to their staff or workplace’s recognised trade union and try to reach agreement. The agreement should be put in writing, for example, a workplace policy.
Under what circumstances should they not mandate vaccination?
“Mandatory vaccination may discriminate on the basis of disability, or religious or philosophical belief. If an employer disciplines or dismisses an individual who refuses to be vaccinated, this carries a risk of exposure to an unfair dismissal claim”, added Rachel Suff.
Employers should always take care that their actions do not breach an employee’s human rights and/or lead to claims for discrimination – particularly on grounds of age, religion, belief, disability, or pregnancy - or for breach of employment contracts.
Any new agreement should also ensure that alternative working arrangements, such as working from home, are available for staff who have not been vaccinated.
Is it open for an employer to consider dismissal?
“Where an employee unreasonably refuses to follow a reasonable instruction, that gives potential grounds for a fair dismissal on misconduct grounds. But only potential grounds. Whether it would actually be fair has a number of elements to it”, explains Sue Gilchrist, Legal Director at Pinsent Masons.
Gilchrist continued: “the instruction has to be reasonable to rely on it as grounds for dismissal. This looks back to the employer’s reason for setting the rule, as well as other issues such as how it brought the rule into play – for example, does it have a contractual right to require the vaccination or has it been imposed it without any discussion or consultation – and the employer’s thinking around the issue including what evidence they have relied on."
Gilchrist added that employees need to assess whether an employee has unreasonably refused to follow the instruction, as workers are not homogenous and different factors need to be taken into consideration with each worker. And a fair process is required, which enables an employee to set out their position and thinking before decisions are made and for all efforts to resolve the issue to be carefully considered and explored.
Employee privacy rights
In addition, data collected from any questions or assessments may be personal data, which must be processed in line with data protection laws – and the employer’s data protection policy may need updating.
Leanne Francis, Senior Associate at Pinsent Masons, said: “Mandatory vaccinations could also raise privacy implications. They could be interpreted as interfering with Article 8 of ECHR which gives individuals the right to a private life.
“An employer will need to be able to demonstrate that their interference was proportionate in all of the circumstances and this defence is often nuanced and complex. Employers will also be expected to obtain consent for any work-related medical intervention, in the same way that consent is obtained for referrals to occupational health or drugs and alcohol testing.”