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As the UK government has successfully rolled out its vaccination policy with the age of invites in some locations now being down to 40 years, and willing participants having been vaccinated at least once with many also having received a second vaccine, many employers will be looking to ensure that employees can return to a safe working environment as possible. However, it’s also to ensure that after a year of physical absence from their workplaces that they limit the number of Covid related sickness absences.
As the law currently stands, the UK Government has not made it mandatory for individuals to have the vaccine. They have also left it to individual organisations to decide what is appropriate and whether they can justify the need for mandatory vaccination of employees within their own workplace.
Whether requiring employees to take a vaccine before they return to the workplace can be considered a “reasonable instruction” will depend on the circumstances. Each organisation is different and numerous factors have to be taken into account. So, for example, an employer in the social care sector may be able to issue a reasonable instruction demanding that its employees must have the vaccine, but the justifications available to the social care sector will not be met in most others.
ACAS has also suggested that it may be reasonable to make vaccinations mandatory where it is necessary for someone to do their jobs and they have given the example of workers that need to travel in order to fulfil their roles. However, the reasonableness of this will depend on how other countries implement their rules for entry and whether they insist on vaccination ‘passports’ or rely on testing prior to travel.
It is also very unlikely that there will be any contractual clauses giving an employer the right to impose vaccines.
The fact that the vaccines do not offer total immunity also weakens the argument for mandatory vaccinations in the workplace.
Can employers encourage their employees to get vaccinated instead?
It is up to each individual employer as to whether they wish to take steps to encourage their employees to get vaccinated. They can, if they wish, promote the benefits of being vaccinated but they should be careful as to how any such literature is worded so that employees cannot rely on this as being the cause if unrelated disciplinary or dismissals which may be pursued by the organisation. Employers can also provide an environment whereby if employees wish to take up the vaccine, they can do so by providing paid leave and also paid time off to recover if they have initial side effects.
Can an employer record which employees have taken up the vaccine?
The UK GDPR sets out specific requirements in order to protect employees when collecting, storing or sharing their personal health data which are termed “special category data”. Employers need to carry out an impact assessment in order to be able to justify the need for such records and they should take specific advice before requesting this kind of data from employees.
Can an employer discipline an employee for refusing to be vaccinated?
Whilst failing to follow a “reasonable instruction” could amount to a fair dismissal or possibly dismissal for “some other substantial reason”, it would be a brave employer who dismisses an employee for refusing to be vaccinated without giving them an opportunity to put forward their reasons for refusing and for the employer to assess the reasonableness of their refusal or at all.
Employers should also seriously consider whether there are alternatives to dismissal should that consideration arise by allowing individuals to continue to work from home if they have been able to do so successfully or assigning the employee to another role where the perceived risk is eliminated or reduced. However, legal advice should be taken before any such steps are taken.
Employers should also take heed not to treat those who have had the vaccination differently to those who have not as this could amount to discrimination. The likely protected characteristics and the basis for claims are most likely to be those of age, disability, sex and pregnancy and also on the basis of religion or belief.
By way of example, currently if employers insisted that employees should be vaccinated before returning to the workplace it is likely to amount to age discrimination as the government’s vaccine role out is currently targeted on age and therefore older workers are more likely to be able to return to work than younger workers who have not had the offer of the vaccine as yet. This will obviously change in the coming months.
Other individuals may have been advised not to have the vaccine as a result of a medical condition which can amount to a disability.
There is also the belief of the anti-vaxxers which has not been tested in the Employment Tribunals as whether they amount to a philosophical belief protected under the Equality Act.
It is important to remember that these are sensitive issues. Everyone has been affected by the pandemic to various degrees, emotions are running high mixed in with anxiety, for some, in having to return to an office environment.
There will be polarised views within the workforce. Some will not be phased by a request to have the vaccine whilst others will refuse to be dictated to by the Government let alone their employer. It is therefore crucial for employers to take time to consider and carry out risk assessments of their employees or specific categories of their employees and third parties before justifiably being able to enforce the need to be vaccinated.
Even when justification exists, where employers are met with a refusal, then it is crucial to make confidential enquiries as to the worker’s personal reasons before deciding to take disciplinary action against them.
Polarised views such as these also have the potential to cause disputes within the workplace or bad feeling between employees. It is important for employers to manage these behaviours to ensure that any such incidents are addressed sensitively and immediately to avoid bullying and harassment allegations.
To discuss any of the above, please contact me via Shiva.Shadi@dbf-law.co.uk or call 0161 832 3304.