Coronavirus: can UK employers require staff to be vaccinated?

Many employers are likely to opt to encourage employees to take up the vaccine, without mandating it. However, this is subject to the needs of the business. Requiring employees to be vaccinated raises a number of issues which will need to be thought through before implementation.

Can employers mandate vaccination?

An instruction to take the vaccine could be regarded as a 'reasonable instruction' on the part of the employer, but that will depend on the circumstances. For example, employers in the social care sector may be able to issue a reasonable instruction to employees to take the vaccine because refusal could put vulnerable people at risk. Employers in other sectors arguably do not have the same strong rationale for instructing staff to take the vaccine - for example, professional services, where it has been shown that work can be done effectively from home.

Each business is different, and there will be relevant factors which your legal advisers can assess to establish whether mandating the vaccine is a reasonable instruction in your business.

Clear communications and engagement with the workforce, including any trade unions, would assist an employer who does wish to pursue the mandatory route.

Can employers dismiss for failure to follow a reasonable instruction to vaccinate?

Failure to follow a reasonable instruction can lead to a fair dismissal, most likely 'dismissal for some other substantial reason' (SOSR). Again, using the social care example, a care home employer could well be able to rely on a refusal to seek vaccination to dismiss an employee - based on the instruction itself being reasonable.

However, even where the instruction is reasonable, the dismissal process also has to be fair, with each case considered on its own facts. Only an employee who unreasonably refuses to be vaccinated could be fairly dismissed. There must be an opportunity for the employee to set out their rationale for the refusal, and the employer will need to consider the reasonableness of this.

One of the challenges for employers will be in justifying why accommodation can be made for those who are, for example, pregnant, and not for other employees. This is likely to go to the proportionality of the approach and will be relevant should there be any legal challenge to a dismissal.

An employer seriously considering dismissing an employee as a result of a refusal to be vaccinated will need to give careful thought to whether there are any alternatives to dismissal - for example, reallocating the employee to another role where this does not amount to a detriment in the particular circumstances. Legal advice should be sought before taking any action that might involve any detriment, including dismissal, to an employee who refuses vaccination, given the fact-specific nature of these issues.

Are there any discrimination risks around vaccination?

Any differentiation in treatment between those who have or haven't been vaccinated may amount to indirect discrimination. The most likely protected characteristics which will be asserted are those of age, disability, sex and pregnancy, and potentially religion or belief.

Potential scenarios in which a claim for indirect discrimination may be advanced include where an employee cannot return to site without vaccination; a decision is taken not to pay sick pay to an employee who has refused the vaccine who subsequently becomes ill with Covid-19; or in the context of performance review and management issues where business travel to countries which impose vaccination as an entry requirement is integral to the employee's role.

Taking relevant protected characteristics in turn:

• age - vaccine roll-out within the UK is currently being based largely on the age of the individual. Older workers will be more likely to be offered the vaccine through the NHS with younger workers less likely to be offered the vaccine, at least initially
• disability - there may be some individuals who are advised not to have the vaccine due to a medical condition. Employees with a disability may be unable to take up the vaccine. If they simply say no, an employer would need to understand why and factor that reasoning into their decision-making - but follow-up questioning could also put the employer on notice of a disability of which it hadn't previously been aware. Many employers want to encourage their disabled employees to come forward, so this may generate positive results. However, employers must be prepare to take any follow-up actions required
• pregnancy or sex – the vaccine is not recommended for those who are pregnant, breastfeeding or planning to get pregnant. Someone who is 'outed' as being pregnant or planning pregnancy because she has not been vaccinated may be able to use this to assert discrimination if she is then subjected to unfavourable treatment. For example, if she is selected for redundancy a couple of months later she may argue that the reason for her selection is her pregnancy or childcare plans, and while the employer may have clear, non-discriminatory grounds for the redundancy it may find itself having to defend a claim it may not otherwise have faced. These risks can be mitigated if the knowledge of the pregnancy or pregnancy plans is limited to those not connected with any future decisions that may be taken regarding that member of staff
• religion or belief – will the 'anti-vax' movement attract protection under the Equality Act? 'Belief' in this context means a "philosophical belief that is genuinely held, that is cogent, serious and applies to an important aspect of human life or behaviour". The belief must also be worthy of respect in a democratic society, and not affect other people's fundamental rights. Whether the belief is protected is likely to depend on the individual circumstances - but it is theoretically possible that this type of belief could be protected, and therefore that requiring an individual to act in contravention of this belief could be discrimination.

Are there health and safety issues around mandating vaccination?

Under UK health and safety law, employers also have obligations to reduce health risks to employees and others to a level which is as low as reasonably practicable. The vaccine should be considered as part of Covid-19 risk assessments, as a potential additional measure to control the risks associated with contracting the virus at work. However, it is likely that we will still need to follow social distancing laws and guidance for some time: Sir Patrick Vallance, the government's chief scientific officer, has warned that face masks may be required until next winter

Health and safety considerations also need to take account of any health risks associated with the vaccine itself for certain groups or even for individual employees. Mandating the vaccine could give rise to claims from employees who suffer an adverse reaction to the vaccine if a link can be established, so medical advice for employees may be required.

What about data protection issues?

Requiring evidence of vaccination gives rise to significant data protection issues. Employers would have to carefully consider why they need evidence of vaccination and whether it is appropriate for their business. Doing so will require a data protection impact assessment which must consider not only the reasons for requiring the data but also issues like how it will be held securely, who will have access and whether it is appropriate to hold more than a simple 'yes' or 'no'.

A reasonable employer will want to understand why an employee has made a particular decision not to have the vaccine but, as noted above, requiring this detail poses risks from a discrimination perspective.

Are there any other potential issues with the vaccine roll-out?

We know that behaviours at work are an issue in some workplaces. We have seen some employers experience something of an 'age divide' between their employees, with older workers pro-vaccine and disputes arising with younger workers who don't want to take up the opportunity to have the vaccine. This sort of bad feeling occurred following the Brexit vote and at the start of the pandemic, when we saw discriminatory behaviours against those of Chinese ethnic origin.

Employers know how to manage these types of behaviours, but it is worth noting that the arrival of the vaccine may be a trigger.