‘No jab no job’? Q&As on Coronavirus vaccine HR issues

Pimlico Plumbers recently announced a change to employment contracts to include a requirement for staff to have a Covid-19 vaccine. Many employers will be considering if vaccination should be mandatory in the workplace. What are the associated legal risks and how should you manage them?

Can employers require staff to be vaccinated against Covid-19?

The government has not made the vaccine mandatory. Whilst most employers are likely to support their staff in getting the vaccination, it would be risky for employers to insist on vaccination in the majority of cases. By exception, it may be necessary to make vaccination mandatory where it is necessary for someone to do their job, such as where they are required to travel overseas for example.

Can employers discipline or dismiss staff who refuse the vaccination?

If an employer believes an employee’s reason for refusing the vaccine is unreasonable, it could result in disciplinary action in some cases if it is workplace policy to be vaccinated or necessary for someone to do their job. In certain sectors such as care homes, it may be viewed as reasonable for an employer to request that all staff be vaccinated. In cases where employees do not want the vaccine, consideration should be given to alternatives such as redeployment and working from home prior to dismissal. Provided the employer has carried out a careful weighing up of the concerns of the employee against the needs of the business, its customers and employees, it may be possible to successfully defend a dismissal in these circumstances. 

Are there any potential discrimination issues regarding staff who refuse the vaccination?

The vaccination may not be suitable for all. An employee may be unable to get the vaccine because of a health condition which could give rise to arguments of disability discrimination. There are also potential arguments of age discrimination, where the vaccine may not be suitable or available for those of a certain age. Certain religious or moral beliefs could be protected in relation to particular faith groups or vegan and vegetarian employees owing to the animal content of the vaccine. Individual scenarios will require a careful investigation of the facts and the reasons for refusing the vaccine to guard against any claims of discrimination. Any requirement for the vaccine would therefore need to include exceptions.

Can employers introduce a contractual requirement for vaccination?

Introducing a contractual requirement requiring employees to have the vaccine would amount to a change in terms and conditions. Many employees are likely to object to such a requirement. Without agreement, an employer would be faced with unilateral imposition of change or terminating the contract and offering re-engagement on new terms. There are risks attached to both scenarios including potential dismissal and discrimination issues. Introducing such a requirement for new employees avoids some potential legal risks, but it does not secure widespread protection within the workforce.

What are the alternatives to mandatory vaccination?

Employers could introduce a Covid-19 policy requiring that all employees who can be immunised are immunised. Employers have an implied duty to take reasonable care of the health and safety of their employees and take reasonable steps to provide a safe workplace and a safe system of work. It is therefore advisable for employers to consider how to best achieve voluntary vaccination within their workforces. This is likely to include informing staff about the advantages and disadvantages of vaccinations.

What are the data protection considerations regarding vaccination?

If an employer processes any personal data as a result of a requirement for its staff to be vaccinated, then data protection considerations apply. Information about whether employees have been vaccinated is medical data and should be handled in accordance with Data Protection Act 2018.