By Lauren Wilson, Solicitor.
For most of us, the coronavirus vaccine is the light at the end of a long, dark tunnel. As an employer, you may be wondering how the vaccination process might affect your business.
The majority of employers will likely appreciate that it is in their interests that staff be vaccinated as, arguably, the more employees who are vaccinated, the less coronavirus-related absence they are likely to have and therefore the less disruption they are likely to have to their business. However, to what extent can employers require staff to get vaccinated?
Whilst the UK Government has not yet published any guidance for employers on what they can/cannot and should/should not do in relation to the vaccination of staff, we understand that employers are likely to have many questions in this regard. As such, we have analysed below how existing employment laws might apply to this issue and seek to provide employers with answers and tips to navigate their way through the vaccination period.
Should we make vaccination mandatory in our business?
ACAS has released guidance which states that whilst employers should support staff in getting the vaccine, employers cannot force staff to be vaccinated. Whilst this is technically true, since employees must consent to any kind of medical intervention (as with alcohol and drug testing or medical examination), this does not necessarily mean that employers cannot, in any circumstances, introduce a rule or policy which requires employees to get vaccinated.
With that said, whether it is reasonable to have such a policy is likely to depend on the nature of the employer’s business and on the roles of individual employees. For example, if a business providing care to vulnerable people was to require those directly delivering the care to be vaccinated, this is more likely to be seen to be reasonable than if a professional services business with all its staff able to work effectively from home required its staff to be vaccinated.
In any case, any employer seeking to require its staff to be vaccinated should ensure staff have the ability to put forward reasons why they might not want or be able to comply. When presented with such reasons, a reasonable employer would consider these on a case-by-case basis to decide whether their reasons were sufficient. Employers should be particularly cautious where the employee’s reasons could be linked to a protected characteristic i.e. their sex, age, sexual orientation, religion or belief, or race, or connected with pregnancy/maternity, gender reassignment, disability or their marital status. In general, an employer is unlikely to be able to take a ‘one size fits all’ approach to the question of vaccinations.
How could an employer require staff to be vaccinated?
The quickest and simplest way to introduce a mandatory requirement for vaccination would simply be to issue a communication or a non-contractual policy to staff to advise them that they will be expected to accept any invitation they receive to be vaccinated unless they have good cause not to accept. This could also inform staff of what action, if any, will be taken against anyone who unreasonably refuses to be vaccinated.
Employers who recognise a trade union for collective bargaining purposes may need to negotiate the terms of the policy with that union first. For businesses who do not recognise a trade union, it would still be sensible to consult with your workforce over the terms of any policy before introducing it.
Whether it will be reasonable to take disciplinary action, possibly including dismissal, against staff who are unable or unwilling to receive a vaccine, will depend on individual circumstances. It is not intuitively obvious that an employee making a personal decision not to receive a vaccine is committing an act of “misconduct” by doing so. There is little precedent for the proposition that an employer can issue a “reasonable management instruction” requiring an employee to undergo a medical procedure, even an admittedly minor one.
Introduction of a contractual requirement
Employers who do consider they have a compelling basis to require their staff to be vaccinated might choose to go further and seek to amend employment contracts to add a provision which positively requires them to agree be vaccinated when offered the vaccine.
The effect of such a clause would be to place an employee who refused the vaccine in material breach of contract. However, the enforceability of such a contractual clause remains to be tested in the Employment Tribunals or courts. It may also be possible that a court or tribunal which found that such a clause was enforceable in principle, would also find that the clause must by necessity be subject to various implied terms about the circumstances in which an employee could still legitimately refuse to be vaccinated. The employer should certainly, as a minimum, consider the circumstances in which the requirement to accept a vaccine would not apply and make this clear in the employment contract.
Clearly, any such changes to employment contracts would have to be agreed in advance with the employees to whom they apply or their recognised trade union. Employers should also carefully consider which parts of their workforce such a requirement should apply to.
If there was an agreed contractual requirement in place, this could give the employer a much better argument for bringing disciplinary action against, or even dismissing, employees who did not comply. However, it would still be prudent to consider the individual reasons for non-compliance and whether any risks existed, particularly in relation to protected characteristics under discrimination law, before doing so.
For all of these reasons, it will be essential for employers to take detailed legal advice before proceeding.
Can employers treat those who have been vaccinated any differently from those who have not?
In this regard there are both health and safety law and employment law considerations.
Given the time it is likely to take for there to be widespread vaccination in the UK, and acknowledging that no vaccine can be 100% effective, there are likely to be some social distancing measures in force in our society for the foreseeable future. It is therefore not likely to be recommended that social distancing measures are loosened too much initially as staff become vaccinated (unless that becomes the Government’s advice). Therefore, having one set of rules that apply to vaccinated staff and another set for non-vaccinated staff is unlikely to be sensible in terms of health and safety.
Furthermore, the employment law risks associated with treating vaccinated staff differently from non-vaccinated staff could also be quite extensive. One example could be allowing vaccinated staff to come off of furlough and return to working their full hours, whilst requiring non-vaccinated staff to remain on furlough. The specific risks would depend on the reasons why the non-vaccinated staff had not been vaccinated but, if the reason was connected with a protected characteristic, this could lead to discrimination claims. Even in the absence of protected characteristics, inconsistent treatment could potentially lead to other claims such as constructive dismissal. It would therefore not be recommended to treat staff who choose not to be vaccinated less favourably than those who have had their jab, unless the employer had compelling business or health and safety grounds for doing so.
For employers not requiring staff to be vaccinated, should they do/say anything to staff about the vaccine?
While not obliged to do so, it is perfectly appropriate for employers to promote staff wellbeing by encouraging employees, in general terms, to take the vaccine when offered it. Clearly an employer should not go as far, however, as advising any individual employee as to whether they ought to be vaccinated – that is a medical decision to be made in conjunction with the employee’s doctors.
Separately, if an employee’s decision on whether to be vaccinated or not is going to have some impact on their employment, it is important that the employer spells out any measures it is going to put in place in respect of unvaccinated employees, so that each individual can make an informed decision about the matter.
Dealing with time off for vaccination
There is no general right to time off for medical appointments or treatment and no specific legal right to time off, paid or otherwise, to attend a COVID vaccination appointment. However, most employers we have spoken to are allowing employees to attend appointments during working hours, without loss of pay. This seems to us to be good practice in terms of promoting wellbeing in the workforce and ensuring that the chances of COVID spreading at work are reduced. It may be difficult to justify refusing time off with pay for this purpose where an employer wishes to make vaccination mandatory within the workforce. For other employers, they should use their discretion as to whether time off will be paid and whether staff will be required to make the time back up.
An employer can of course reasonably ask to see evidence of the appointment in advance and there should be no difficulty in the employee providing this.
Where the vaccination appointment does clash with an important work commitment, employers should know that it is possible for the appointment to be re-arranged and the invite letter provides easy-to-follow instructions on how to rearrange it. However, we recommend that employers only require an employee to rearrange a vaccination appointment where this is absolutely essential.
Again, employers should be mindful of whether the employee has a relevant protected characteristic (most likely in relation to their age or disability) which would make it more important for them to be vaccinated when deciding if it is reasonable to refuse the time off or to require the appointment to be rearranged for a more convenient time during working hours. Employers should also operate in a consistent manner to avoid any differences in treatment which could be seen as unfair or discriminatory.
Implications of monitoring who has/has not received the vaccine
Employers may wish to monitor levels of vaccination amongst staff. Information about this will amount to sensitive personal data in terms of data protection legislation. Employers must have legitimate grounds for collecting and processing such information and must take particular care not to share the information with anyone other than the data subject, except where absolutely necessary.
We consider most employers would have legitimate grounds to collect and process this kind of information, where it is done to preserve the health and safety of staff. However, where employers intend on doing so, they should advise staff of how they will collect the data, how it will be used and how long it will be kept for.
However, we understand that the UK Government has no plans to introduce vaccine passports, with the possible exception of where this is required for international travel. Therefore, employers will very likely have to gather any data on whether individual employees have been vaccinated in a more informal manner.
In closing, we would add that we do not believe that your employees will be entitled to know whether colleagues they are working with have been vaccinated or not. Information of this nature should certainly not be disclosed by an employer without the express consent of the employees concerned.
If you would like to discuss any of the above changes or proposals, or you require support or advice on any employment law matters, please do not hesitate to contact the team on 0141 331 5150.