16.04.2021

As the UK’s Covid-19 vaccination roll out continues at pace and lockdown restrictions are gradually eased, we take a look at the legal and logistical questions that employers will need to consider concerning vaccinations and the workplace.

Can we require our existing employees to be vaccinated?

The suggestion that employers might seek to introduce “no jab, no job” policies has been widely publicised in the media. Initially, of course, such a policy would be impracticable, as the vaccine is being rolled out to the UK’s adult population in stages and is not yet available to younger adults. At the time of writing, those aged 45+ are able to book their vaccination online. Some GP surgeries appear to be ahead of schedule and are already inviting people in their late 30s to be vaccinated, but this is dependent on location.

Even once the vaccine has been offered to all UK adults, however, imposing a blanket “no jab, no job” policy for all existing employees is problematic for the following reasons: 

• There are no statutory provisions that could force individuals to be vaccinated. The Public Health (Control of Disease) Act 1984 specifically states that members of the public should not be compelled to undergo any mandatory medical treatment, including vaccinations.

• Employers cannot physically force an employee to take the vaccine and, as the vaccine is not (currently) commercially available, employers cannot actually control access to or make an employee take the vaccine. 

• From a health and safety perspective, employers must take all reasonably practicable steps to reduce risk in the workplace to the lowest practicable level – as you will have been doing during the pandemic by, for example, enforcing social distancing, enhancing cleaning, etc. but, as things currently stand, this would not extend to requiring (or providing) vaccinations. 

There are also employment law considerations.  First, is it a reasonable management instruction to ask staff to take the vaccine when it is available and, if so, can you take action against them if they refuse? This will depend on the circumstances. For example, you are unlikely to be able to establish that requiring vaccination is a reasonable management instruction in an office or factory setting where other measures can be put in place to protect staff and customers and the current Government guidance emphasises that employers must continue to follow the ‘working safely’ measures, even if employees have had the vaccine (one or two doses). However, if an essential part of a role involves travel to certain countries and proof of vaccination becomes a legal requirement to travel to those countries, then it might be a reasonable instruction to require vaccination for employees in that role. 

Second, any decision to move an employee to a different role, or discipline or dismiss them if they are not vaccinated may give rise to indirect discrimination risks. For example:

• disability discrimination in relation to individuals with certain medical conditions who may not be able to have the vaccine, if they are considered disabled under the Equality Act; 
• pregnancy discrimination, as the vaccine has not been widely tested during pregnancy so is not currently recommended for most pregnant women; or
• religion/belief discrimination, if an employee refuses to be vaccinated on the basis of their religious beliefs, or an employee who is an ethical vegan refuses the vaccine because it was tested on animals. (It is less likely that someone with anti-vaxxer beliefs would be protected, but there isn’t yet any case law on this point.)

Whether indirect discrimination could be justified would depend on the particular circumstances, with the employer having to show that its actions were a proportionate means of achieving a legitimate aim in each case.  

The third main employment law consideration relates to the law on unfair dismissal.  It is possible that requiring vaccination could lead to a risk of claims for constructive dismissal. This could occur if employees feel strongly enough to resign in response to a vaccination requirement or object to being instructed to work from home or moved to an alternative role for which the employer doesn’t require vaccination. In addition, there is a risk of unfair dismissal if employees are dismissed for refusal to comply with a mandatory vaccination policy if a tribunal does not agree that dismissal was within the range of reasonable responses in the circumstances. (In both of those scenarios, the employee would need to have at least two years’ service in order to bring a claim, unless discrimination was also in issue.)

Can we make vaccination a condition of employment for new joiners?

Introducing a “no jab, no job” type policy for new hires is less risky than imposing such a rule for existing employees because job applicants and new joiners will not be able to bring unfair dismissal claims. However, the potential discrimination risks discussed above would still apply. Employers would therefore need to consider whether they could make exceptions to such a rule where applicants cannot be vaccinated for medical or pregnancy-related reasons, or object to vaccination on the basis of religion/belief.

In addition, employers would have to take care not to introduce such a requirement too early. As noted above, the vaccine is currently not available to younger adults, so making vaccination a condition of employment for new joiners would, at this time, give rise to a risk of age discrimination. An employer might seek to justify such a requirement as a proportionate means of a achieving a legitimate aim, such as maintaining the health and safety of the workforce. However, if the employer is not introducing a vaccination requirement for existing employees, doing so for new joiners would arguably not be that effective from a risk mitigation perspective – in which case any discrimination involved would likely not be justified.

Can we encourage our existing employees to be vaccinated?

Although employers cannot force employees to be vaccinated (see above), employers can certainly encourage employees to accept the vaccine when it is offered to them. This may involve sharing factual information about the vaccine and the benefits it can provide. However, employers should consider carefully how they approach this – for example, ensuring any communications are consistent with current public health advice and sensitive towards staff who cannot be vaccinated for medical or religion/belief reasons.

In addition, Acas guidance suggests that employers wishing to encourage vaccination uptake amongst their workforce could consider:

• allowing employees paid time off work to attend vaccination appointments;
• paying employees their full usual pay if they are off sick with vaccine side effects; and
• not counting vaccine-related absences towards trigger points under any absence management policy.

Can we reduce or relax health and safety measures in the workplace in light of the vaccination rollout?

In short, the answer to this question is no. The current guidance on working safely makes clear that employers must continue to follow the “working safely” measures, even if employees have had (one or two doses of) the vaccine.

As part of its plans to gradually ease lockdown, the Government will complete a review of social distancing, the wearing of face coverings and other such measures in order to decide on the timing and circumstances under which such requirements might be lifted. However, that review is not due to be completed before June and it remains to be seen whether it will include any change to current advice on the measures required for employees who have been vaccinated. 

Can we restrict access to the workplace to employees who have been vaccinated?

For employers who have had employees working at the workplace throughout the pandemic because working from home is not possible, it would be impracticable to now restrict access to employees who have been vaccinated, as this would involve sending home any employees who have not yet had the jab. The answer to this question is therefore directed to employers whose workforce has to-date been largely home based.

Current Government guidance states that employees should continue to work from home wherever possible and this is set to remain the case until June at the earliest under the Government’s plans to gradually ease lockdown. Any return to the workplace would need to be in accordance with that guidance.

We will have to wait to see whether Government guidance on the impact of vaccination on other workplace health and safety measures changes when the “work from home where possible” message is updated to allow a more general return to the workplace.  In any event, only allowing those who have been vaccinated to return to the workplace would give rise to similar discrimination risks as a blanket policy requiring all employees to be vaccinated (see above). In addition, regulating access to the workplace in this way before all adults have been offered the vaccine would amount to indirect age discrimination against younger employees. Depending on the circumstances, it may be difficult for employers to justify such age discrimination.

There may also be a risk of constructive dismissal claims from as yet unvaccinated employees whose contracts provide that their place of work is the employer’s workplace and who are fed up with home-working and keen to return. The potential negative impacts of home-working, such as the lack of social contact, reduction in learning and development opportunities for junior employees, etc. have been widely reported over the past year. Particularly if Government guidance does not recommend any restriction on access to the workplace based on vaccination status, it is possible an employment tribunal might find in favour of an employee who resigns in response to their employer taking such an approach.

Can we require employees who are working from home and have been vaccinated to return to the workplace?

As noted above, any general return to the workplace would need to be in accordance with Government guidance – which currently continues to recommend that employees should work from home wherever possible (and this is set to remain the position until at least June).

The guidance on working safely during the pandemic acknowledges that working from home may not always be possible in all sectors and employees who cannot work from home have therefore been permitted to attend the workplace throughout the pandemic. However, where employees have been working from home effectively to-date, the fact that they have now received the vaccination does not mean that you can require them to return to the workplace while the “work from home where possible” guidance remains in place.

Can the clinically extremely vulnerable return to the workplace if they have been vaccinated?

Employees who are considered “clinically extremely vulnerable” were previously advised to shield and not attend the workplace. If they could not work from home, these employees are likely to have been placed on furlough by their employer under the Coronavirus Job Retention Scheme (the Extended CJRS). 

The clinically extremely vulnerable have been prioritised under the UK’s vaccine rollout, so most of them are now likely to have received at least their first vaccination and, since 1 April, the shielding guidance has been relaxed and the clinically extremely vulnerable have been advised that they can return to the workplace if they cannot work from home. 

If you would like to invite an employee who cannot work from home and has been away from the workplace because they were shielding to return to work, we recommend that you conduct a risk assessment to identify whether any particular steps are needed from a health and safety perspective, in addition to the Covid-secure measures you have already implemented in the workplace, to take into account the employee’s individual circumstances. However, it is important to note that some clinically extremely vulnerable employees might still not feel able to return to the workplace – and this may be the case even if they have been vaccinated. The guidance for the clinically extremely vulnerable appears to recognise this, as it provides that they may remain eligible for furlough under the Extended CJRS throughout the period that it remains in place, provided their employer agrees – see our FAQs on the Extended CJRS and Employees unable or unwilling to attend work for further details. 

Clinically extremely vulnerable employees who can work from home should continue to do so for the time being, in accordance with the current Government guidance that all employees should work from home where possible. As noted above, the fact that an employee has been vaccinated does not change this – see “Can we require employees who are working from home and have been vaccinated to return to the workplace?”.

Are employees entitled to time off during working hours to attend vaccination appointments? Should that time off be paid?

There is no general legal right for employees to take time off work to attend medical appointments, although some employers may have provisions on this in their existing attendance / time-off policies. Even in the absence of any such policy provision, however, we would suggest that employers consider allowing employees to take time off during their working hours to receive the Covid-19 vaccination, both from a PR and employee relations perspective and for a variety of legal reasons:

• Employers’ general obligation to take all reasonably practicable steps to minimise health and safety risks in the workplace could be interpreted to include a requirement to enable employees to be vaccinated.
• There is no requirement for such time off to be paid. However, as noted above, providing employees with paid time off to attend vaccination appointments may be a way of encouraging vaccination uptake amongst the workforce.

Can we keep a record of which of our employees have and have not been vaccinated?

The ICO guidance for organisations who are considering collecting vaccination data about their employees confirms that such data collection is permitted where the data is necessary and relevant for a specific purpose. Accordingly, the answer to this question will depend on what your risk assessment says about the role vaccination plays in a safe workplace. You should be clear about what you are trying to achieve and how recording employees’ vaccination status will help you to achieve this. Keeping vaccination status data simply for monitoring purposes will be difficult to justify.

If you do have a good reason for collecting data on your employees’ vaccination status, you will need to carry out a DPIA (a data protection impact assessment) before you begin to collect the data. 

The ICO has also confirmed that, if you have good reason for collecting the data, there are potential lawful bases for doing so. The ordinary legal basis is most likely to be that it is necessary in your legitimate interests to know which staff are vaccinated so that you can plan staffing levels / teams to best ensure safety in the workplace. As an employee’s vaccination status is special category data, you will also need an additional legal basis. Consent can’t be relied upon in the context of the employment relationship, so the additional legal basis you would be most likely to rely on would be that the processing is necessary to comply with a legal obligation in relation to employment – probably the obligation under health and safety law to undertake a risk assessment and take all reasonably practicable steps to ensure a safe working environment.  

If you will require some kind of evidence of vaccination rather than taking on trust an employee’s statement that they have been vaccinated, from a data minimisation perspective, we would suggest that HR ask employees to present the card they were given when they received their vaccine for inspection, but not take a copy of this, only make a note that HR have seen it. 

It is also important to comply with your other data protection obligations. For example, you should ensure that you tell employees why the information is needed, what it will be used for, how it will be stored, how long it will be retained and who will be able to access it. This could be done in a specific privacy notice that you provide to employees at the time you request the data from them.

Access to the data will need to be limited as tightly as possible to those who really need it. If an employer allows particular employees’ vaccination status to become widely known, this could give rise not just to a breach of data protection law, but also to a risk of tensions or disputes with colleagues who take a different view about vaccination (see further below). 

With regard to retention periods and the requirement not to keep personal data for longer than necessary, once there is herd immunity, the employer may no longer have a reason to retain the information.

The above assumes that the employer will record employees’ vaccination status if they volunteer that information, or that it will ask employees to disclose this information. If an employer were to require employees to disclose their vaccination status rather than simply asking them to, then the employer would need to consider as part of its DPIA whether there are less intrusive ways of meeting its purpose – so it would have to justify why a voluntary approach wouldn’t work just as well. 

How should we handle tensions between employees about vaccination?

There is potential for workplace tension about vaccination to arise in a variety of ways and the issues are likely to be particularly sensitive where protected characteristics under the Equality Act are concerned. 

For example, what if an employee whose partner or child is clinically extremely vulnerable gets into a dispute with a colleague who has decided not to be vaccinated for religious reasons, calling them irresponsible or aggressively questioning their decision and beliefs? 

Employers will need to handle such situations with care and sensitivity and we recommend that they seek advice on their particular circumstances before taking action.

How can we help?

Our upcoming webinar, GDPR in 2021: key issues for HR, will cover the data protection issues that arise from processing employees’ Covid-19 vaccination status data and other Covid-19 health data, including data gathered during workplace Covid-19 testing, in more detail.  It will also update you on the impact of the UK’s exit from the EU following the end of the transition period and address key issues such as recent ICO guidance on subject access requests (SARs) and handling personal data securely in the context of remote/home-working. The webinar will take place on the morning of 21 April 2021.

For more information and to book your place, click here.

Make UK have produced a set of Essential GDPR Templates for HR, which contains the HR ‘must have’ documents required for GDPR compliance, including template employee and job applicant privacy notices, a data protection policy, employee data retention process and more. These documents have just been updated to reflect issues around Covid-19 including testing and vaccination, as well as the end of the Brexit transition period and various recent changes to ICO guidance. For further information and to purchase the template documents, please click here.

If you are a Make UK member and you need support in relation to Covid-19, please contact your adviser. If you are not a Make UK member, please call 0808 168 5874 or email us [email protected]. Our experienced Legal, HR and Health & Safety teams are here for you.

The Coronavirus FAQs on our website are also updated regularly and provide detailed guidance on issues relating to Covid-19.