With the UK’s Covid-19 (Coronavirus) vaccination programme now in full swing and starting to get down to those who are of working age, there has been growing interest about whether firms can follow a ‘no jab, no return to office’ policy.
Now that offices can potentially re-open by mid-June, there is a belief among some employers that encouraging their employees to accept the vaccine is the best strategy for returning to work. They may also feel that ensuring staff are not placed at risk by working alongside colleagues who have not received the vaccine is in accordance with best practice. After all, all employers will understand they have a legal obligation to protect the health and safety of their workforce and provide a safe working environment.
However, this is a very sensitive area. Employers that feel strongly about requiring employees to take the vaccination will need to have a compelling argument for doing so. This would include reasons why other Covid-19 measures taken, such as social distancing, home working and mask wearing, are insufficient to mitigate the risks.
Even if organisations do have a strong business case, enforced vaccination could still be challenged on legal grounds. For example, an employee could argue that the policy was contrary to their human rights because it impacted on their right to a private life. Employers would also need to ensure compliance with the provisions of the Data Protection Act 2018 and the General Data Protection Regulations (GDPR) because the policy would involve processing and storing medical data. Equally, if an employee had an adverse reaction to the vaccination, they could bring a personal injury claim against their employer for any lasting illness or injury.
These and other issues would need to be considered and addressed as part of any assessment and justification for introducing enforced Covid-19 vaccination.
For existing staff, the terms of their agreement to work for their employer are contained in their contract of employment. Prior to the pandemic, few contracts anticipated a medical emergency of this scale, therefore few, if any, will contain clauses dealing with testing and vaccination in the workplace. The introduction of compulsory testing would, therefore, amount to a change in terms and conditions. So staff would need to be consulted on the proposed change and reasons for it and they would also need to consent to the proposal before it could be introduced.
It’s highly likely some staff would likely agree voluntarily to having vaccinations, but others may not, meaning employers would need to decide what to do in such circumstances. Some may content themselves with just vaccinating those willing to agree, bearing in mind workforces are fluid, and feel that a level of vaccination, in conjunction with other measures such as mask wearing and social distancing, provide a safe working environment.
It’s worth noting however, that dismissing or subjecting an employee to a detriment for refusing to have a Covid-19 vaccination could lead to claims of discrimination. Some employees refuse vaccination because of an underlying health condition, and if these medical conditions meet the definition of a disability under the Equality Act 2010, then taking any kind of action against them for refusing to have the vaccine could result in claims for disability discrimination.
However, employers can certainly encourage staff to get a Covid-19 vaccination by, for example, explaining what they consider the benefits of vaccination to be and the positive impact they believe it would have in the workplace. They could even incentivise them by allowing paid time off to attend appointments. However, care should be taken not to unduly pressurise or mislead staff. The best approach is to allow individuals to make their own informed decision about whether to have the vaccine once it becomes available to them.
Debbie Sadler is senior associate on the employment team at Blaser Mills Law