No Jab, No Job?

Can employers legally enforce a mandatory vaccine policy?

Eager to return to a “safe” normality after almost a whole year of pandemic restrictions, some employers have gone so far as to commit to a mandatory “no jab, no job” policy.  This has raised many questions as to the legality of enforcing a mandatory vaccine policy among staff.

This post looks into the key questions being asked by employers and the factors they should be considering once vaccines are made available to more of the population.

1.  Do employers have a legal right to require employees to be vaccinated?

Vaccines are not currently mandatory and employers do not have a legal right to require employees to have the vaccine.  According to Government guidance (https://www.acas.org.uk/working-safely-coronavirus/getting-the-coronavirus-vaccine-for-work), employers should support staff in having the Coronavirus vaccine, but they cannot force staff to be vaccinated.

Employers may find it useful to talk with their staff about the vaccine and share the benefits of being vaccinated.  If an employee does not want to be vaccinated, the employer should listen to their concerns.  Employers should be sensitive towards individual situations and must keep any concerns confidential, in particular as some people may be resistant to taking the vaccine on health grounds or on grounds that are protected from discrimination under the Equality Act 2010.

UK employers have obligations under health and safety law to reduce health risks to employees and others to a level which is as low as reasonably practicable.  The vaccine should be considered as part of Covid-19 risk assessments, as a potential additional measure to control the risks associated with contracting the virus at work.  Employers may decide, following such a risk assessment, that having a vaccinated workforce would be necessary and reasonable in reducing the risk.  Therefore, an instruction to have the vaccine could be regarded as a ‘reasonable instruction’ on the part of the employer, but that will depend on the circumstances.

2.  Can employers require employees to disclose or to produce proof of whether they have been vaccinated?

Requiring evidence of vaccination gives rise to significant data protection issues.  Details about an employee’s vaccination status is likely to be considered special category health data, which means employers will have to identify a particular GDPR exemption for processing it.  Potential grounds may include where it is necessary for performance of rights and obligations in connection with employment, such as maintaining a safe place of work.  A policy would also be required, covering the collection of such data and its retention (i.e. only retaining the information for as long as it is needed).

Even if permitted by privacy law, an employer cannot require an employee to disclose such information against their will. Whether any adverse action could be taken against an employee who refuses is likely to depend on the grounds of their objection, but it would seem reasonable for an employer to be permitted to ask the question as part of a wider policy of encouraging staff to be vaccinated.

3.  Can employers take action if employees do not want to be vaccinated? 

Whether an employer can take action will depend on a number of factors, including whether there is a vaccination policy in place and whether being vaccinated is necessary for the employee to do their job.  On one view, it is arguable that a requirement for vaccination is a reasonable management instruction in order for an employer to provide a safe place of work.  Any such policy, however, is likely to have to make room for exceptions based on employees’ reasons for refusal.

For example, the reason for refusal to have the vaccine could be protected from discrimination by the Equality Act 2010.  Indeed, the COVID-19 Secure Guidelines (https://assets.publishing.service.gov.uk/media/5eb97e7686650c278d4496ea/working-safely-during-covid-19-offices-contact-centres-041120.pdf) suggest that employers should be mindful of the particular needs of those with protected characteristics.

Employers could be at risk of indirectly discriminating against individuals with certain protected characteristics if they plan to treat vaccinated staff differently from unvaccinated staff.  Examples of different treatment could include requiring vaccinated staff to return to work whilst preventing unvaccinated staff from entering the workplace or not allowing them to travel abroad for work.    If employees are in the unvaccinated group due to a protected characteristic, this could give rise to issues of indirect discrimination.

Individuals with the following protected characteristics could potentially be indirectly discriminated against in these circumstances:

Age

The vaccine roll-out is being prioritised largely based on age, with older (and therefore higher risk) individuals being offered the vaccine first.  This means that middle-aged and younger members of the workforce will not be eligible for vaccination until around September 2021.

Any differences in treatment between vaccinated and unvaccinated staff could, therefore, be indirectly age discriminatory unless the treatment can be objectively justified.

Disability

Individuals with certain medical conditions are being advised not to have the vaccine. These employees may be disabled for the purposes of the Equality Act 2010, and their decision not to get vaccinated could be ‘something arising from’ that disability. Differential treatment could, therefore, lead to successful indirect disability discrimination claims unless the employer could show an objective justification for the treatment. If employers press employees for reasons why they will not have the vaccine, employers could be put on notice of a disability they did not know about, and must then be prepared to make necessary reasonable adjustments for the employee.

Pregnancy and maternity

Expectant mothers have also been advised not to have the vaccine.  Employers therefore need to ensure that any vaccination instructions or policies cover pregnant women in order to avoid indirect discrimination.  It would also be prudent to take into consideration the fact that many women choose not to tell their employer of their pregnancy until three months’ gestation, and also the fact that women who are trying to get pregnant may also refuse a vaccine.

Religion or belief

An anti-vaccination stance could amount to a protected philosophical belief and therefore attract protection under the Equality Act 2010.

A successful claim using this protected characteristic would need to establish that the belief was genuinely held, cogent, serious and worthy of respect in a democratic society.

If an employee refuses to be vaccinated because of a protected characteristic, and this results in detrimental or disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim and claim constructive unfair dismissal if they resign in protest.  It is important to remember that discrimination claims have no financial cap, so a successful claim could potentially come with severe costs consequences in damages for the employer.

Future developments

It will be crucial for employers to stay on top of updates on this matter as the vaccine begins to be rolled out more widely.  We hope to provide further updates as they arise.

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