Navigating the new normal

Employment Insight: can employers require their employees to be vaccinated against Covid-19?

All content on this page is correct as of February 19, 2021

In the wake of the commencement of the government’s vaccination programme, aimed at immunising the majority of the UK population against the Covid-19 virus, several UK employers have stated that they will be setting up systems to track which of their staff have received the vaccine.  Others have gone a step further, and have announced that they will be amending their contracts of employment to include a requirement that their staff take the vaccine, or have said that they will dismiss or decline to hire any employee who refuses to do so. 

Whilst many employees are likely to want to be vaccinated, irrespective of any requirement to do so by their employer, it is likely that a significant minority of employees will not.  Recent research carried out by King’s College London and IPSOS Mori suggests that around one in six people are likely to refuse to take a Covid-19 vaccine. Most often, this stance is linked to the individual’s religion or beliefs, or age group.  The government has made it clear that it has no plans to make vaccination mandatory. 

If employers wish to require that their staff be vaccinated in order to work for them, the potential risks and liabilities associated with this will depend on whether it is a reasonable requirement in the circumstances.

The starting point is that employers have several legal duties in relation to the health and safety in the workplace.  This includes a duty to ensure the health and safety of employees so far as is reasonably practicable.  Breach of this duty has serious consequences, including criminal sanctions and unlimited fines.  Employers will therefore have to give careful consideration to the level of risk posed to their workforce by Covid-19 and what steps should reasonably be taken to reduce this risk in the workplace.  There are also statutory rules regarding an employer’s obligation to consult with employees in respect of health and safety measures, which will have to be borne in mind.  Some employers may feel that requiring their workforce to be vaccinated against the virus would be an easy solution.  However, the question of whether this could be a reasonable step to take, and therefore a reasonable management requirement, will very much depend on the sector in which the employer operates and the working arrangements in place.    

For example, whilst vaccination may be a reasonable requirement in the care sector, where staff are likely to have regular exposure to both the virus and vulnerable people, it may not be a reasonable requirement in the professional services sector, where risk of exposure to the virus is likely to be lower and staff work in office environments where their interactions with colleagues and clients are easily distanced or limited, or they can work from home.  A relevant issue for consideration here may be that, whilst there is scientific evidence to show that the vaccines are up to 95% effective in inoculating against Covid-19, there is currently less evidence regarding the extent to which they also prevent transmission of the virus.  The absence of such evidence may make it more difficult to establish or rely on the argument that the vaccine should be taken by employees to protect colleagues and/or customers.

There is also the question of what the position would be if an employer were to require vaccination, but an employee refused to comply.  Again, the answer will depend very much on whether it was a reasonable management instruction for the employer to mandate that staff be vaccinated (the considerations outlined above will be relevant here), but also on whether the employee’s refusal to comply is reasonable in the circumstances.  Relevant considerations in respect of the latter might include whether the refusal is linked to a medical condition, medical advice, existing medication, pregnancy, the fact that the employee has already had the virus and believes themselves to have immunity, or incompatibility with a religious or philosophical belief. 

An unreasonable refusal to follow a reasonable management instruction could merit disciplinary action or even dismissal.  However, any subsequent decision to dismiss would itself also have to be proportionate and reasonable in the circumstances – i.e. there is no alternative, less onerous, course of action the employer could take to resolve the issue (like, for example, relocating the employee to an alternative role or site, or changing working patterns), and a fair process must be followed (including giving the employee the opportunity to set out their rationale for the refusal and considering the reasonableness of this before deciding whether to dismiss).  Conversely, if the requirement that staff be vaccinated was not reasonable in the circumstances, or the employee’s refusal was reasonable, any subsequent disciplinary action or dismissal is likely to be unfair. 

There are also potential discrimination issues to bear in mind.  Employees (and job applicants) who refuse to be vaccinated on the basis of their religion, philosophical belief, pregnancy, sex or disability may be protected from disciplinary action, dismissal and any other detriment, under the Equality Act 2010.  So, for example, there may be individuals who are advised not to have the vaccine due to a medical condition, or because they are breastfeeding, pregnant or trying to conceive, or who choose not to take it because it is incompatible with their religion or philosophical belief.  Disciplining or dismissing these employees, or subjecting them to any other form of detriment, for not taking the vaccine may be indirectly discriminatory. 

One problematic indirect discrimination issue that is likely to arise will be where an employee refuses to be vaccinated on the basis of a “philosophical belief” – for example, because they are against vaccinations generally, or because they are against the Covid-19 vaccine specifically.  The first step here would be to assess whether the belief causing the individual to refuse to be vaccinated is a “protected” belief which meets the test set out in case law.  Whilst a general aversion to vaccinations without medical justification, or an aversion based on an unsubstantiated conspiracy theory, is unlikely to meet this test; an aversion based on a belief that vaccines may not be considered safe and should not be used until they have been subjected to more extensive trials over a longer period of time, which is backed up by scientific evidence, may do.

Indirect discrimination can of course potentially be objectively justified, if it can be shown to be a proportionate means of achieving a legitimate aim; this would effectively require the employer to show that the requirement to be vaccinated was intended to achieve a legitimate aim (for example, protecting the health and safety of its workforce) and there was no less onerous option available to achieve the same outcome (for example, changing work patterns or allowing the employee to work from home). 

Mandating vaccination could also give rise to personal injury claims from employees who suffer an adverse reaction to the vaccine, if a link can be established.  So, employers will have to consider whether medical advice for employees may be required if vaccination is to be mandated.

Requiring evidence of vaccination is also likely to give rise to significant data protection issues and obligations – in light of the fact that this will require employers to process and retain “special category personal data” about their employees. Employers would consequently have to carefully consider why they need evidence of vaccination, whether it is appropriate in the context of their business and whether it is appropriate to retain it.  Consideration would also have to be given to who will have access to such data, where it will be stored and how it will be kept secure. 

Clearly, the question of whether an employer can require their employees be vaccinated is far from straightforward, and has significant potential to lead to liability for unfair dismissal and indirect discrimination, as well as giving rise to data protection issues.  The starting point should therefore be for employers to have an open, transparent dialogue with staff to encourage vaccination, educate on its benefits and support staff access to the vaccine, rather than making it mandatory.  Legal advice should be sought before any mandatory vaccination requirement is imposed on staff, to help the employer assess whether such a requirement might be reasonable, and better understand the risks and liabilities associated with it.

If you have further questions about this topic, please contact Therese Rankin from our Employment team by email: [email protected].

This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.

All content on this page is correct as of February 19, 2021.

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