As the Oxford University AstraZeneca vaccine commences its roll out today and the new, more infectious strain of COVID-19 progresses its journey around the globe, we consider the implications of the vaccine roll out for employers and employees.
In accordance with the Health and Safety at Work Act 1974, employers are obliged to take reasonable steps to reduce any workplace risks. Therefore, some consideration needs to be given to the vaccine when considering COVID-19 risk assessments in the workplace.
Of course, the vaccine is not mandatory, is not yet commercially available and is provided free by the NHS. It is being provided first to those aged 80 and above, care workers and health workers, and will then be rolled out to the rest of the nation broadly prioritised based on age and comorbidities. It is, of course, possible that the vaccine will become commercially available over the course of the year.
Based on predicted speed of vaccination, people aged 65 will receive a vaccine in March, 55-year olds in June and most of the rest of the population between July and September 2021. The government has sidestepped questions regarding being provided with a COVID-19 vaccine passport – although Michael Gove has stated that it is up to individual businesses whether they allow entry to their premises to customers without the vaccine.
As businesses struggle to stay afloat in such turbulent times and working from home is no longer the new normal – just plain old normal – many employers are contemplating when and how they can expect to bring their staff back to work. As the vaccine is being held out to be the panacea to a return to the “old normal”, it will no doubt be front and central in the contemplation of employers as they face the new dawn of 2021.
There are numerous issues to take into consideration when determining whether an employer may legally require employees to be vaccinated. The most appropriate starting point is the Health and Safety at Work Act 1974.
Health and Safety Considerations
Employers are obliged to take reasonable steps to reduce any workplace risks in accordance with the Health and Safety at Work Act 1974. In addition to their statutory duties, all employers have a common law duty to take reasonable care for the safety of their employees; they have a duty to see that reasonable care is taken to provide them with a safe place of work, safe tools and equipment, and a safe system of working. Therefore, it would be prudent to consider the vaccine when undertaking COVID-19 risk assessments, including the measures that might be taken where an employee decides not to get vaccinated.
It has long been the case that many Healthcare workers are required to have certain vaccines, especially those who have regular clinical contact with patients and are at risk of contracting diseases from their patients and/or passing diseases on to patients. Healthcare professionals have a duty of care towards their patients, which includes taking reasonable precautions to protect them from communicable diseases. Therefore, a common requirement of employment of healthcare workers is provision of evidence of immunisation against certain diseases. It has been reported that some care homes are making the vaccine mandatory for their carers – no doubt due to the horrendous transmission rates of COVID-19 and resultant deaths in care homes, and it being relatively straightforward in the circumstances to show, by way of risk assessment, that being vaccinated is the most reasonably practicable way of mitigating the risk of COVID-19, where up close and personal care is the main purpose of the role.
However, mandating vaccination as a health and safety requirement for people who are not Healthcare workers or other high-risk workers, such as laboratory staff, is not straightforward, especially when currently scientists are uncertain whether being vaccinated prevents a person from transmitting the virus to others or whether it simply suppresses symptoms in the carrier.
At the very least, encouraging vaccine uptake amongst staff and, where appropriate, providing information to assist them in making an informed decision would seem sensible. ACAS has provided guidance on the subject and considers that employers should support staff in having the Coronavirus vaccine, but state that they cannot force staff to be vaccinated. Clearly, this is correct, employers cannot force anyone to have the vaccine. However, there could be consequences for employees refusing to have the vaccine, depending on their particular circumstances. ACAS suggests that employers may find it useful to talk with their staff about the vaccine and share the benefits of being vaccinated. Whilst this is just ACAS guidance, it is possibly indicative of the Employment Tribunal’s stance on the matter should a claim be brought before them which deals with the issue.
Employers must be cautious about treating the vaccine as a mechanism to remove other COVID-19 measures. Although widespread vaccination may eventually reduce the measures required to make a workplace COVID-19-secure, as the currently approved vaccines are not 100 per cent effective, and there may be both employees and patients/clients/customers who cannot receive the available vaccines, employers should be cautious when scaling back protective measures.
Would Requiring Employees to be Vaccinated be a Reasonable Instruction?
Employees have a duty at common law to obey the lawful and reasonable orders of their employer. This implied duty forms the basis of managerial prerogative in the day-to-day running of business. It also provides a legal basis for “works rules” or “company policies” which are often given to employees in handbooks. These do not generally form part of the contract of employment and, as such, can be altered unilaterally by the employer, but the employee must nonetheless obey them.
Employers can, technically, fairly dismiss an employee who has refused to follow a reasonable instruction. Whether an instruction is reasonable or not will depend on the specific circumstances.
For instance, requiring doctors to be vaccinated, and disciplining or ultimately dismissing them if they do not, is likely (save extenuating circumstances) to be reasonable due to the high-risk nature of the work, and the fact that vaccination in these settings is essential to protect lives and the spread of the virus among those least able to fight it.
However, it will naturally be much harder for employers of office workers to show that the instruction is reasonable in the circumstances. For instance, asking employees to be vaccinated as workers are proximate in large open plan offices, which increases the risk of the spread of infection, may not be straight forward, especially for highly profitable companies, where they could provide more space per worker but choose not to to maintain or increase profits, or where homeworking is a viable option.
Over the last two decades, the workplace has seen a move away from cellular offices and buildings with opening windows to open plan offices with air conditioning units. For numerous years, open plan offices have been linked with high incidences of illness – some becoming known as “sick buildings”. As a result of risk assessments and the possibility of future viruses, we may see a return to more cellular offices and to buildings with windows that open to allow a free flow of air.
Introducing a Contractual Requirement to have the Vaccine
It may be that certain employers will wish to introduce a contractual requirement for their employees to have the vaccine. Introducing a contractual requirement that they do so would amount to a change in terms and conditions of employment.
It is possible that many employees would object to such a requirement, either due to their concerns about the safety of the new vaccine (whether well-founded or not) or no doubt in many cases general opposition to being compelled by their employer to undertake what is effectively a minor medical procedure.
If agreement cannot be reached and the employer still wishes to impose such a term, they would have two options available to them, either unilateral imposition of the change or terminating and offering re-engagement on the new terms. Both options carry significant risks, particularly when the change is so controversial, and taking account of the potential human rights argument and the discrimination issues discussed below. An employer should exercise caution if contemplating such a change. As the guidance from ACAS states, the employer should attempt to agree the change with staff or the relevant workplace union in the first instance. The employer should also carefully consider the relevant data around uptake of the vaccine amongst the general population and any adverse consequences of taking the vaccine and ensure it allows for exceptions relating to pregnancy or other issues which mean vaccination is not appropriate.
In the next few months, it is conceivable that we find ourselves in a situation where individuals are not allowed entry to certain countries without proof of vaccination. For some employees, international travel pre-COVID-19 was viewed as a crucial part of their role and was a condition of their employment. In such a scenario, it may, on first flush, seem less risky to introduce a contractual provision mandating vaccination for such employees. However, as lockdown has shown, in many cases it has proved possible, with technological advances, to carry out these roles effectively from the UK, and this will need to be carefully considered before mandating a vaccination for such workers.
The COVID-19 Secure Guidelines note that employers should be mindful of the particular needs of those with protected characteristics who are protected by discrimination law (in particular, in these circumstances, those with disabilities and new or expectant mothers). It has been established that the risks associated with the virus are significantly greater in people with comorbidities – many of which would no doubt be classed as a disability.
Employers are at risk of indirectly discriminating against employees with certain protected characteristics where they treat vaccinated staff differently from unvaccinated staff. Different treatment could include refusing unvaccinated staff entry to certain parts of the workplace, not allowing them to travel abroad for business, refusing them entry to certain roles or denying them sick pay if they are off sick with COVID-19 symptoms.
Age – As priority for the vaccine is largely based on age it will not be until mid-late summer before middle-aged and younger members of staff are eligible for vaccination. Any differences in treatment between vaccinated and unvaccinated staff could, therefore, be indirectly age discriminatory unless the treatment could be objectively justified. It may be possible to objectively justify treatment based on scientific data and third parties and other nations COVID-19 rules and policies. However, careful consideration would need to be given to the particular circumstances of each individual potentially affected and legal advice sought.
Disability – Individuals with certain medical conditions are being advised not to have the vaccine. These employees may be disabled for the purposes of the Equality Act 2010 and their decision not to get vaccinated could be ‘something arising from’ that disability. Differential treatment could, therefore, lead to successful indirect disability discrimination claims unless the employer could show an objective justification for the treatment. If employers press employees for reasons why they will not have the vaccine, employers could be put on notice of a disability they did not know about and must then be prepared to make necessary reasonable adjustments for the employee.
Pregnancy and maternity – Pregnant women have been advised not to have the vaccine. Therefore, employers should ensure that there are suitable exceptions to any requirement to vaccinate, to avoid discriminating on this basis. However, this will not always prove straight forward as many women choose not to tell their employer of their pregnancy until 3 months gestation. Similarly, those trying to get pregnant may also not want the vaccine. This will no doubt be a tricky situation to navigate.
Religion or belief – In theory, an anti-vaccination stance could attract protection under the Equality Act 2010 by amounting to a protected philosophical belief. An employee taking such a stance would need to establish that their belief was genuinely held, cogent, serious and worthy of respect in a democratic society. It is possible that arguments relating to religious discrimination may have a higher chance of success. For example, Muslim employees may refuse the vaccination if they contain pig glycerine. This could cause issues for vegans too, who object to vaccines that contain animal-based ingredients or have been tested on animals. Historically, vaccines have contained eggs and even shark liver.
It is important to remember that where an employee’s refusal to be vaccinated is down to a protected characteristic, and results in detrimental or disciplinary action from their employer, they may be able to issue a direct or indirect discrimination claim and claim constructive unfair dismissal if they resign in protest. Discrimination claims have no financial cap, so it is possible that if a claim is successful, any damages award could be significant.
Human Rights Considerations
Whilst Employers may be able to assert that, due to Health and safety considerations and their rights to require employees to obey a reasonable instruction, they can mandate vaccination in certain scenarios, they must tread carefully and be aware in many workplaces of the need to balance any such requirement to be vaccinated against the possible infringement of Article 8 of the Human Rights Act 1998 – right to respect for private and family life. A mandatory vaccination policy could well be considered an invasion of an individual’s privacy. This will be especially pertinent where there are less personally invasive ways of minimising the risk of transmission within the workplace. However, such a requirement may fall within the exception in Article 8 of being necessary in a democratic society in the interests of public safety or the economic well-being of the country, for the protection of health, or for the protection of the rights and freedoms of others.
Data Protection Issues
The Information Commissioner’s Office (ICO) has published information on its approach during the pandemic and has confirmed that obtaining health information about an individual is special category personal data and an employer (or controller) can only process such data on certain grounds under the UK GDPR. Holding data concerning whether an employee has been vaccinated is, therefore, likely to be special category personal data. Before a project is commenced that would collect special category personal data, such as a mandatory vaccination requirement, an impact assessment must be completed. The purpose of this assessment is to help identify and minimise data protection risks. Part of any such assessment will require consideration of the necessity and proportionality of any such project.
Employers must handle employees’ personal data with great care and should seek legal advice when considering any new project.
Bullying and Harassment
Consideration should be given to potential bullying or harassment of employees by fellow employees as a result of having or even possibly not having had the vaccine. If policies are to be created around mandating the vaccine with relevant exceptions, care and consideration needs to be given to ensuring that not only personal data is protected but also whether it would be appropriate to introduce a policy making clear that any such inappropriate behaviour would result in some form of disciplinary sanction.
Personal Injury Claim
As was reported in the first week of the Pfizer vaccine rollout, with two individuals suffering anaphylaxis, it is possible for individuals to have adverse reactions to vaccines. Therefore, there is a risk, albeit small, of an employee having an adverse reaction to the vaccine. If the employer has mandated vaccination, any affected employee may attempt to bring personal injury proceedings against the employer.
As is clear from the above, an employer considering imposing a mandatory vaccination policy must tread very carefully indeed. In the first instance, to avoid upset and potential claims being brought, discussions should be held with the employees and/or any relevant union about the desire to activate such a policy and the reasons why it is considered necessary, with an opportunity for the employees to have their say on the matter. Any such discussions should also deal with possible consequences for failure to comply.
A blanket approach is not recommended where employees hold different roles and have differing levels of risk of contracting or passing on the virus in the workplace. Care must be taken to ensure that any such policy is not discriminatory and great care must be taken when holding and processing any data relating to the vaccination of employees.
Where employers end up disciplining or dismissing staff for failing to follow an instruction to vaccinate, employers must also remember that, aside from showing that the instruction was reasonable in the circumstances, they need to show a fair dismissal process was followed. It would be sensible for employers to carefully consider alternatives to dismissal, such as relocating staff to lower-risk roles or allowing homeworking.
If you are considering the mandatory vaccination of employees and would like to discuss how to assess what would be considered reasonable in the individual circumstances of your business, for any other questions arising from this alert, or for specific legal advice on particular circumstances, please contact our Senior Consultant Elizabeth McEneny, who specialises in employment and partnership issues for multinational employers, senior executives, partnerships and partners.