Following the much anticipated roadmap presented by the Government which deals with the country’s exit of the Covid-19 pandemic, it is hoped that the current social distancing restrictions will be lifted in June, and that this could mean that the doors of offices, which have been closed to most employees during lockdown, may be opening up once again fairly soon.
As the current vaccination program progresses, it is anticipated that many employers will be keen that their employees take up the offer of the vaccine, to prevent Covid being contracted in the workplace.
Is it right therefore that an Employer should demand that its employees have the vaccine before returning to the office? This is a question that is being considered by many on both sides of the employment relationship.
Who is the vaccine available to?
Currently, the NHS is offering the Covid-19 vaccination to people most at risk of the virus. The vaccination scheme started with front line workers, and is now progressing through stages based on the age and vulnerability of people. The Government has recently pledged to offer all adults their first dose of the vaccine by the end of July 2021.
Employers may therefore want their Employees to be vaccinated in order to prevent Covid-19 being contracted in the workplace. However, for various reasons, some Employees may not be able to have the vaccine, or may choose not to accept it.
Careful consideration therefore needs to be taken in respect of the treatment of Employees by Employers, as there may be grounds for treating those who have been vaccinated differently to those who have not, or treating those who have refused a vaccine differently from those who have not been offered one. As such, it is crucial that Employers take into account a number of different factors explained further below.
Can Employers take Employee’s data in respect of their vaccination status?
It is likely that the data based on Employee’s vaccination status will be classed as special category health data. This means that before Employers make a record of this data, they will must first seek the consent of their Employees. Further, the policies relating to the collection and storage of this data should be highlighted in the relevant documentation, such as an Employee’s employment handbook.
It may also be wise for Employers to consider the grounds for asking Employees for proof of their vaccinations and whether it would be appropriate or not to ask an Employee their reason for refusal of the vaccine, if that is the case. It is important for Employers to be sensitive in communicating this topic and Employers must also avoid the leak of such protected health data to third parties or other members of staff.
Can Employers persuade Employees to take the vaccine?
Employers may consider that the vaccine will offer the workplace some protection from the virus, particularly if their Employees have face-to-face contact with clients. There may therefore be grounds for Employers to ensure all staff are vaccinated based on their risk assessment, depending on the type of business that is being run. For example, an Employer will find it easier to justify the encouragement of the vaccine being given to staff who work with vulnerable clients, as opposed to staff who work predominantly from home with little to no client contact.
In certain situations, Employers may also be duty bound to ensure that all Employees have access to accurate information about the benefits (and indeed risks) of the vaccine, as this may in turn persuade Employees to consider taking the vaccine. This may be relevant in the case where social distancing may be difficult to follow in the workplace, based on the type of work being carried out. It may therefore be argued that the vaccine would offer further protection in such a scenario, based on a risk assessment.
If an Employee does indeed refuse to take up the offer of a vaccine, it will depend on the business’ risk assessment and the Employee’s grounds for refusal as to whether it will be appropriate for an Employer to take further steps. Careful consideration must also be taken in that Employees may not want to provide an Employer with their real reason for their refusal of the vaccine.
Covid-19 vaccinations may also be offered on a Private basis at some point in the future and so it may be the case that Employers will want to run their own workplace vaccination schemes, to prevent Covid being contracted in the workplace as per their risk assessments.
Are there other arrangements you can put in place for those who are not vaccinated?
It has been advised by the Government that the vaccine may not be safe or recommended for everyone. For example, the first human trials of the vaccine on pregnant women are currently being carried out. Employees may therefore have a legitimate reason for not wanting to have the vaccine, for health reasons. They may also object to the vaccine based on a particular religious belief.
It may be possible to move Employees who have rejected the offer of a vaccine to another role or location, in order to place additional protection on them to mitigate their risk of contracting Covid-19. However, it is paramount that an Employer’s risk assessment sets out this process clearly, in order to justify this differential treatment. It is also important that an Employer’s risk assessment can justify the differential treatment of protected groups such as those who are excluded from having the vaccine due to being pregnant or having a disability. If an Employer fails to have such a log, those protected under the Equality Act who are treated differently from those who have been able to accept the vaccine could make a claim of discrimination.
Can Employers dismiss an employee who is not vaccinated?
If an Employer has taken all of the above factors into account and concludes that no other arrangement can be made for an Employee who refuses or is not able to have the vaccine, it may be necessary to consider whether an Employee should be dismissed.
Employers should carefully consider some other factors before taking further action, such as whether they should wait for a period of time to see if the risk assessment changes. Whether or not a dismissal is fair is very specific, and will vary on a case to case basis. If you are therefore considering whether or not to dismiss an Employee for this reason, it may be wise to seek legal advice before doing so, in order to confirm that the dismissal is fair.
Can Employers impose a different policy on new hires?
There may be a greater scope to justify some new policies for new hires, as opposed to existing Employees. However any policy that it potentially discriminatory will need to be justified using the Employer’s risk assessment as otherwise, those who fail to be hired as a result of the new policy may still bring a claim of discrimination.
In summary, if you are an Employer and considering the implementation of a new vaccination policy for your Employees or new hires, it is important that you carefully consider all of the above issues, and keep the matter under review using a detailed risk assessment.
As members of the Employment Lawyers’ Association, Paul Robinson Solicitors keeps up to date with changes in employment law and practices. We work with both employers and employees, and provide our clients’ with the support and confidence to handle such issues swiftly and effectively, with a pragmatic approach to every case.