With the announcement that one of the Covid-19 vaccines has received approval from the UK regulator, employers are now asking whether they can insist that employees are vaccinated before returning to the workplace. There are clearly legal and moral issues that need to be considered.
Firstly, the anticipated Covid-19 vaccination programme in the UK will not be made mandatory as the UK government does not have legal power to do this, alongside the challenges and human rights concerns this would raise in any event. The UK Government has the power to prevent, control or mitigate the spread of an infection or contamination under the Public Health (Control of Disease) Act 1984. However under this Act, provisions cannot be made to require a person to undertake medical treatment. This would include having a vaccination.
On that basis, it is ultimately the decision of the individual as to whether to get vaccinated, meaning it is also highly unlikely that employees could be required to be vaccinated by their employer.
Employers may first consider the contracts which it has in place with its employees. It would be highly unlikely that they include terms which would enable an employer to take such a drastic step. It is remotely possible that an employer may have a clause in its employee contracts which covers medical examinations, which, depending on the extent of the drafting, may to some extent allow an employer to rely on this. However, this would undoubtedly raise similar human rights concerns, as well as issues around employee consent depending on how and by whom the vaccine is administered (data protection considerations around the processing and retention of vaccine-related data must also be taken into account).
Further, it is highly unlikely that compelling employees to be vaccinated could be justified by an employer in practice as a ‘lawful and reasonable instruction’. Instructing employees to get vaccinated, and taking action such as dismissal if the instruction is refused, would undoubtedly be detrimental to wider employee relations in addition to bringing a high risk of employment tribunal claims (unfair dismissal). Implementing such a requirement, either as a condition of employment or ‘reasonable instruction’ would also bring risk of discrimination claims by those with protected characteristics being the reason as to why they are unable to be vaccinated (such as disability or religion). Any adverse impact on such employees as a result (i.e. excluding them from entry to the office or participating in some way) heightens the risk of discrimination claims, as well as the possibility of constructive dismissal claims should an employee resign as a result.
It should also be borne in mind that the Covid-19 vaccine is newly developed, and both the true effectiveness and long term side effects remain unclear. Public perception of the vaccine is mixed, and employers need to balance these concerns and continue to promote all methods of ensuring an employee’s health and wellbeing including social distancing, use of face masks and sanitising.
Employers should carefully consider their practical reasoning for any such proposal and whether it is considered to be justifiable, when balanced against the possible (likely) negative impact on employee relations and high risk of claims. It is possible that in some sectors, such as care work, or work undertaken in a medical setting, a requirement to be vaccinated could be validly justified in line with the role. However, the vast majority of employers are unlikely to be able to argue that taking this step would be proportionate and necessary. Employer’s would need to carry out the specific risk assessment for the role to consider whether a Covid-19 injection would be required as opposed to other Covid secure arrangements which have already been adopted. In addition, such a requirement is unlikely to be considered in keeping with protecting the right to private and family life under Article 8 of the Human Rights Act. There would also be the associated risks of reputational damage to be considered.
Whilst implementing a requirement for staff to be vaccinated is not advisable, encouragement and recommendation would be an appropriate and balanced step to take. Much like the existing annual flu jab, many employers will circulate information to their employees around the benefits of this, and perhaps even provide vouchers or cover the cost for employees to go and get their flu vaccine at a clinic or pharmacy. However, as above, a recommendation and/or the provision of relevant information once vaccines become more freely available, is realistically the full extent to which an employer can and should involve themselves in the vaccination of employees.
As the world begins to opens up, there may be other ways of encouraging/incentivising vaccination. For example, there have been suggestions about opening up commercial flights more widely to those who have been vaccinated, and countries easing their entry and quarantine restrictions for those who have been vaccinated. It may also be that entry to certain public events such as sports stadia/concerts will be prioritised for those who have been vaccinated. Where vaccination certificates are required for a traveller to enter a country, this may impact on an employee’s ability to do business in certain areas and may lead them to determine that they would need to have the vaccine. However, any such measures by third parties such as travel companies and venues remain open to challenge, and most Governments are likely to encourage vaccination by way of public health campaigns; as is the case for other diseases already. The picture on this however currently remains unclear.
Alongside employment issues the employers must consider specific data protection concerns, as any information regarding whether an individual is vaccinated will amount to special category data with specific requirements for processing such data. Employers will also need to review their return to work risk assessments and office configurations once vaccines are more widely available, and to factor in staff who may or may not have been vaccinated into their thinking and planning (and it may be the case in due course, that staff are happy to volunteer this information).