Out-Law / Your Daily Need-To-Know

Is UK's attitude to mandatory Covid vaccinations shifting?

Out-Law News | 09 Dec 2021 | 11:05 am |

Anne Sammon tells HRNews about the legal considerations when imposing a mandatory vaccination policy on staff

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  • Transcript

    The number of UK job adverts explicitly requiring jobseekers to be vaccinated against Covid-19 is rising fast. It is up 189% over the last 3 months – a clear sign that the UK’s attitude to mandatory vaccinations is shifting fast. 


    The research is by the job search engine Adzuna who’s website explains the data very well with a  graph showing something close to exponential growth between July and October this year. They also show which industry sectors are requiring vaccination. Social care leads the way, followed by Healthcare & Nursing. That’s not surprising - anyone who works in a care home in England must now be fully vaccinated against Covid-19. Front line health workers in England will also be required to be fully vaccinated by 1 April next year.


    Personnel Today reports on this and reminds us that earlier this year the Equality and Human Rights Commission said that it was ‘reasonable’ for certain sectors, such as health and social care, to require staff to have Covid-19 jabs. Crucially, any requirements should be implemented proportionately, with exemptions for the small number of people who cannot be vaccinated for medical reasons.


    The change in mood is interesting, so we recently conducted a straw poll of some of our own clients to try to gauge what they are doing. We found one in eight currently require vaccinations, and those which do tend to be involved in energy, healthcare and advanced manufacturing. However, of those employers who have not mandated vaccination, one in eight is currently considering whether to do so. 


    We also looked at whether UK clients are considering whether company sick pay should be withheld for non-vaccinated employees who are required to self-isolate. Just under one in ten have applied this approach.


    Mandatory vaccination is in the news again because the new threat caused by the Omicron variant – its rapid spread has led to a number of European countries are now considering imposing mandatory vaccination as a legal requirement for their citizens. Last month Austria last month said it would make vaccines mandatory and, as the FT, reports, Germany has moved towards mandatory vaccination and has tightened Covid restrictions, ramping up pressure on those refusing the jab. The German regulations laid out last week would  severely curb access to public and private activities for those who are unvaccinated which, at present, is around 28% of the population.


    Whether the UK government will follow suit time will tell, but meanwhile a number of employers are now considering a mandatory vaccination policy for their staff, so let’s consider that. Anne Sammon joined me by video-link to discuss this. I started by asking Anne about those job adverts requiring proof of vaccination. So, is that approach actually lawful?”


    Anne Sammon: “So I think this goes back to the age-old question of objective justification and what the employer is trying to achieve and how they're trying to achieve it. There will be some people who cannot be vaccinated for medical reasons, for example, and if they are not able to apply for a particular job on that basis there is a real risk of discrimination claims. So what we tend to see is exclusions for certain categories of people on the basis of not actually being able to be vaccinated and then you get the difficult issue of what if somebody is refusing to be vaccinated because they're anti-vax, or they have a belief that we shouldn't test on animals, for example? That then gets us into all those issues around whether or not this is a protected belief for the purposes of the Equality Act.”


    Joe Glavina: “Presumably there’s difference between those sectors where government mandates vaccination - so employers have the law on their side - and sectors where the employer mandates vaccines but it’s not a legal requirement. So, I guess that distinction is an important one?”

    Anne Sammon: “It is massively important because for those sectors where the government has said, you have to be vaccinated in order to work in this sector, so currently, within the care home sector, and from next year within the NHS, employers will have a very good reason for having imposed that requirement on their staff and one where they can say, well, actually, the reason for not being able to employ you, or not being able to continue to employ you, is that we're not able to so you get into grounds of illegality when it comes to termination of employment. Whereas, for those where there is no mandated vaccination by government we are into different issues. So effectively, you're having to look at why are you, as an employer, imposing this practice? What are you seeking to achieve? Who are you seeking to protect, and are there other ways and means that you could go about doing it that would have less of an impact on those who don't want to be, or cannot be, vaccinated?”


    Joe Glavina: “Can I ask you about how contracts of employment might be affected. So, if you go ahead and impose a mandatory vaccination policy how would it simply be a disciplinary issue leading to dismissal for those who don’t get vaccinated, or should you be thinking about having a mass termination/re-engagement exercise?”


    Anne Sammon: “I think what we've seen from clients who are contemplating this is the idea that they would rely on a policy rather than going through that exercise of changing employment contracts. Now there is obviously a different issue about whether you might change your employment contracts for new staff to just add a line, maybe, to say employment is conditional upon proof of vaccination status, or confirmation of vaccination status, because it's much easier to amend something that someone hasn't entered into. But for existing staff, I suspect most employers will want to go down the route of relying on a policy or, potentially, a reasonable instruction to be vaccinated as their grounds for then taking disciplinary action against individuals.”


    Joe Glavina: “Some employees will refuse to disclose their vaccination status saying, perhaps, it’s personal information. How does an employer deal with that situation if they have mandatory vaccination policy?”


    Anne Sammon: “So I suppose part of it is about how you maybe phrase the requirement. So what you might say is, rather than you need to tell us your vaccination status, you could, for example, say your employment is conditional upon you confirming that you have been vaccinated. So I think that the way in which the question, or the requirement, is phrased is really important in this regard. Ultimately, what you could do is make a call that if people can't confirm that they've been vaccinated, and you've got good grounds for doing that, that actually you will dismiss in those circumstances, or withdraw company sick pay, or whatever it is, the consequence, that you're thinking of applying to those who aren't certain have been vaccinated.”


    Joe Glavina: “Can I ask you about sick pay. Is that lawful to withhold company sick pay from those employees choosing not be vaccinated?”


    Anne Sammon: “Potentially. I think, again, it goes back to what is your objective justification for applying this type of practice? One of the things that we've heard from some organisations is, we don't see why we should have to cover the costs of paying companies sick pay for individuals who've made a choice not to be vaccinated - we accept that that is their choice but we don't see, as an organisation, why we should have to pay for them to self-isolate when, if they'd been vaccinated, they wouldn't have to. I think if organisations are going down that route of kind of thinking through what are the consequences for us as an organisation, why is it that we're imposing this, that starts to help with that objective justification piece?”


    Joe Glavina: ““What about conducting a poll to help gauge what your staff think on this issue, Anne. Is this a good idea as preliminary step before introducing mandatory vaccination policy?”


    Anne Sammon: “So I think it can be a really useful step to try and gauge what your employees already think, where your potential areas of objection are, how many people are likely to be problematic when it comes to this issue? I think there's the piece around ensuring that the employee communications around any poll are very clear about why the information is being sought, whether the information is being collected on an anonymous basis or whether it can be attributed to an individual, the latter being far more problematic from a data protection perspective. But I think once you've carried out a poll, even the fact that people have refused to participate, or have answered ‘I’d prefer not to say’ it gives you an indication, potentially, of where their thinking is at.”


    As you will know, the government has already stepped in on the issue of mandatory vaccination in the NHS and care sectors. Anyone who works in a care home in England must now be fully vaccinated against Covid-19. Front line health workers in England will also be required to be fully vaccinated by 1 April next year. Last month Anne has talked to this programme about the mandatory vaccines in the NHS – that’s ‘Grievances and claims loom with NHS mandatory vaccines policy’. As she points out, similar issues apply for private sector employers. That programme is available for viewing now from the Outlaw website.