COVID-19 Vaccination: Can Employers Require Staff To Be Vaccinated Before Returning To The Workplace?

Now that the COVID-19 vaccination programme is in full swing and the Government is slowly but surely beginning to unlock the country, we are starting to see many of our employer clients planning the return of their workforces. One particular aspect we have been advising on is whether or not employers are able to require their staff to be vaccinated before allowing them to return to the workplace.

As it stands, it’s not a legal requirement for individuals to be vaccinated and, in all likelihood, it never will become mandatory. Currently, the legal obligation on employers is simply to continue to comply with the Government’s applicable Covid-secure guidelines for a safe workplace and a safe system of work (which don’t require employers to make sure their staff are vaccinated before allowing them to return to work).

In our experience, the majority of employers are choosing to stop short of implementing a mandatory policy of requiring employees to be vaccinated prior to returning to the workplace. This has been due to a number of reasons, including the difficulties in justifying that stance on current evidence (on medical or other grounds) and the potential for discrimination claims from disadvantaged groups who have either opted not to be vaccinated (due to their religion or beliefs or on health grounds) or are yet to be vaccinated (on age grounds) – see further on these points below.

The preferred approach, at present, seems to be for employers to positively encourage staff to take up the vaccine, when offered, prior to returning to the office, to allow paid time off for employees to attend their vaccine appointments and, more generally, to promote the individual and wider benefits of doing so. This approach is in line with ACAS’ current guidance on the matter.

That said, we are aware of a recent survey which reported that approximately ¼ of the employers surveyed were going to make vaccination a mandatory requirement before allowing staff to return to the workplace.  This (large) minority opinion may gain popularity over time, especially if/when the Government starts to firm up its position on this delicate subject.

No one-size fits all approach

What is clear right now is that a one-size fits all approach is not going to work in this scenario. In the absence of any clear Government guidance on this matter, employers are going to have to take a risk-based approach.

In reality, a policy of permitting just vaccinated individuals to return to the workplace is only likely to be reasonable and therefore, lawful, if an individual’s choice whether to be vaccinated or not is outweighed by the risk to other members of staff / other individuals. There will be specific sectors where this mandatory approach to vaccination would be justifiable and, therefore, more lawful than others. An obvious example would be the requirement for individuals in the care sector to be vaccinated in order to protect the vulnerable individuals they care for; that would be a justifiable requirement. The same could be said for others working in the emergency services.

Obvious, sector-specific examples aside, a general requirement for all existing members of staff to be vaccinated is likely to be difficult to justify on ‘general’ health and safety grounds at present, given that the jury is still out as to whether the vaccine reduces transmission and stops the spread of the virus (as opposed to the key aim of reducing the impact of the virus on an individual).It remains the Government’s view that the measures set out in its Covid-secure guidelines are the best way of preventing the spread of the virus throughout the workforce, as well as taking advantage of the increased accessibility of lateral flow tests (now available for free for employers with 50+ employees); this is what all employers should be abiding by and, arguably, the fact that members of staff are vaccinated or not becomes moot.

In terms of any justification for the imposition of a mandatory vaccine policy, a further added ‘complication’ that many employers are likely to face is if agile working practices are the norm and have worked successfully in the past. Requiring someone to be vaccinated on health and safety grounds where they can perform their role satisfactorily from home (i.e. and not in the office such that they don’t come into contact with colleagues) could be challenged as an unreasonable requirement which may be difficult to justify in a discrimination context.

If you consider that mandatory vaccination is essential

If your business decides to implement a policy of mandatory vaccination before allowing staff, or groups of staff in particular roles, to return to the office, and it can justified, you should consider putting in place a written vaccination policy; ACAS deems this a necessity.

Not only would such a policy provide a clear set of rules on the matter, for the business and staff alike, it would also make it easier for the business to discipline (and, potentially, following a fair procedure, dismiss) anyone that refuses to be vaccinated, for failure to follow a reasonable management instruction. It may also be prudent to make the requirement a contractual obligation, if vaccination is necessary for the individual to carry out their role.

In any event, the approach of prohibiting staff who have not been vaccinated (whether by choice or not) from returning to the workplace is not without risk and there are certain factors to bear in mind:

• Constructive Unfair Dismissal: Preventing an individual from working, in circumstances when they are ready and willing to do so, is likely to amount to a repudiatory breach of their contract, entitling them to resign and claim constructive unfair dismissal (if they have at least two years’ continuous service)
• Discrimination:
  • The vaccination is not suitable for everyone, for example, pregnant women or individuals with certain health conditions. In such instances, a mandatory requirement to be vaccinated could amount to indirect discrimination and / or, potentially, discrimination arising out of a disability;
  • As vaccination is only currently available via the NHS and in order of priority, allowing only vaccinated staff to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees. This is particularly so, given we are relatively early on in the vaccination programme. In the event, it may be possible to justify both direct and indirect age discrimination, depending on the circumstances although, as noted above, relying on ‘general’ health and safety reasons as justification may be difficult;
  • Many individuals object to having the vaccination on the grounds of their religion or belief, for example ethical vegans (it has previously been held that ethical veganism, depending on the circumstances, amounts to a protected characteristic) and ‘anti-vaxxers’ (it remains to be see whether such individuals would be protected by discrimination law – whilst unlikely, it’s not entirely impossible). Again, mandatory vaccination to the detriment of such individuals could amount to indirect discrimination.
• Personal Injury: There may be a risk that the vaccine has some long-term adverse side effects for some individuals – this, of course, is yet to be tested. A mandatory requirement for staff to have the vaccination, which in turn leads to an individual suffering long-term effects, could result in a personal injury claim against the employer;
• Data Protection: There would be data protection implications – information relating to an individual’s health amounts to “sensitive personal data” and is subject to more stringent protection under the UK GDPR than ‘general’ personal data; a Data Protection Impact Assessment would be an absolute necessity before processing any such data. The ICO has published specific guidance about employers’ obligations regarding collecting, storing and sharing personal information related to the COVID-19 vaccine. View guidance here.
• Adverse Publicity: There is always the possibility that requiring mandatory vaccination (when it’s not a legal requirement) may lead to adverse publicity for the business. Of course, the contrary could be true in some circumstances.

What if a staff member refuses to be vaccinated in line with our vaccination policy?

If, after implementing a vaccination policy, you were to come up against a member of staff that refused to be vaccinated you would, of course, need to give careful consideration to their particular circumstances and any risk factors, including those outlined above, before preventing them from entering the workplace.

ACAS Guidance states that employers should carefully listen to the concerns of staff members that don’t want to be vaccinated and be sensitive towards individual situations, keeping any concerns raised confidential.

Allowing the individual to work from home would be an obvious solution in that scenario and you should continue to pay them in full. However, if the individual is unable to work remotely, then it gets a bit tricky – the individual will argue that they are ready and willing to work and should be paid in full but the business would argue that they cannot attend work because of health and safety reasons.  A compromise would need to be found, or furlough could be used as a short-term solution (currently until the end of April) or, if the business was confident of its health and safety grounds, disciplinary action could be adopted (with appropriate legal advice).

Are there any other options worth considering?

Employers wishing to stop short of implementing a mandatory vaccination policy, perhaps because of the risks involved, but nevertheless wanting to encourage staff to take up the vaccine, may want to consider making changes to their sick pay schemes.  This is particularly the case where generous company sick pay applies. For those employers, adopting a policy whereby occupational sick pay is not paid to individuals who do not take up a vaccine, when offered, but who later contract the virus and are off-sick, could be an attractive option. This may require a contractual change to terms and conditions, and appropriate advice will need to be taken, but is an option worthy of careful consideration.

We’ll, of course, keep you updated should any official guidance about mandatory vaccinations emerge. In the meantime, you know where we are if you have any questions.