One issue which many employers are currently grappling with is whether to make vaccination against COVID-19 compulsory for employees returning to the workplace. In a 2-part article we consider this issue in the context of care homes and other workplaces.
What about other employers not in the care sector?
In Part 2 of this article, we look at the situation for employers outside of the care home sector. (Care home employers can access Part 1 here).
For these employers, we are seeing two main issues coming up:
- Can we require employees to be vaccinated before returning to the office even if they do not work in the care sector? and
- Can we check an employee's vaccination status given that from 16 August 2021 fully vaccinated people no longer have to self-isolate following close contact with someone who has since tested positive for COVID-19?
Mandating vaccination outside of the care sector
For employers outside of the care sector, there is no legislation that requires employees to be vaccinated making it more difficult for the employer to enforce mandatory vaccination.
In particular, requiring employees to be fully vaccinated before they can return to the office is potentially discriminatory. For example, younger employees may not yet have had the opportunity to receive both doses of the vaccine and so would be at a disadvantage. It may be that an employer could objectively justify such an approach, particularly with the vaccination roll-out meaning that all over 16s should be double dosed by the Autumn; however, careful thought should be given to the reasons why vaccinations are required and to why those reasons cannot be achieved by alternative measures.
What would also be hard to justify would be any disadvantage to those who refuse to be vaccinated for medical or belief reasons. Unless there is a clear basis for not doing so (see below), exceptions from any mandatory vaccination policy would have to be made for such employees in order to avoid claims of discrimination.
Enforcing mandatory vaccination could also result in employees resigning and bringing constructive unfair dismissal claims where they have 2 or more years' service.
For those employers who do decide to mandate that their employees are vaccinated, this would this need to be written into the contract of employment. Whilst this might be easier for new employees, it may be difficult to achieve for existing employees who are not willing to agree to amend their contract, resulting in the employer having to embark upon a contract variation process. In addition, a written policy outlining the rationale for the approach being taken and how a refusal would be dealt with should also be put in place.
In particular, employers will need to think carefully about the basis on which the mandate is needed. For instance, it might be that having a vaccine is the most reasonably practicable way of mitigating the risk of COVID-19 in the workplace, but this is likely to only apply in certain environments like care homes as discussed in Part 1 of our article. Employers may need to consider whether it would be more reasonable to limit mandatory vaccinations to certain roles; for example, if an employee's role involves international travel, this could also be a basis for mandating vaccination to enable them to fulfil that role. In some situations where vaccination is key to the business, refusal to be vaccinated may be classed as a failure to follow a reasonable management instruction.
Can an employer ask an employee about their vaccination status?
Key to implementing any kind of requirement to be vaccinated before returning to the workplace involves the employer having access to the employee's vaccination status. Potentially employers can ask employees to share details of their vaccination status. This could be on a voluntary basis or again, employers could consider making this compulsory.
Some employees may not want to share their vaccination status, which is classed as special category health data. An alternative might be to ask to see an NHS COVID Pass which is now available in England to individuals aged 18 or over. The current requirements for obtaining a pass are that the individual is fully vaccinated; has had a negative PCR test or rapid lateral flow test within the past 48 hours or has had a positive PCR test within the past six months. The NHS COVID Pass is already being used for high risk settings and fully vaccinated individuals can use it as evidence for overseas travel. However, the current government guidance is clear that essential services and retailers, and in particular businesses that were able to stay open during lockdown, should not be using the NHS COVID Pass. Pending further clarity in the guidance, employers could consider introducing use of the NHS COVID Pass as an additional safety measure for staff, especially given that the legal rules on social distancing and mask wearing have been lifted. Employers should note, however, that the NHS COVID Pass is designed for use in settings in England. Other parts of the United Kingdom have different arrangements.
Whatever route is taken, there are data protection issues to consider. The Information Commissioner's Officer has published guidance to employers explaining that if an employer is just checking status for example by looking at the NHS COVID Pass at the point of entry to allow access to workplaces but without using the scanner and without keeping any records, they will not be processing any data. However, if staff are denied access, for example due to an expired NHS COVID Pass, it may be more difficult to avoid record-keeping particularly in roles where the employee cannot return to work from home.
If the employer creates any records about someone's vaccination status, the employer will be processing special category data and will need to comply with all of the associated data protection obligations that brings, such as having a lawful basis for the data collection and completing a Data Protection Impact Assessment before carrying out the processing.
What about employees who refuse to be vaccinated or to share their vaccination status?
As discussed in Part 1 of our article, an employer may decide to take disciplinary action and ultimately dismiss an employee who refuses to comply with a mandate to be vaccinated or prove their vaccination status. However, such an approach is not without risk. An employee could bring claims relating to data privacy or discrimination and employees with more than two years' continuous employment would also be eligible to bring an unfair dismissal claim. It would then be for an Employment Tribunal to assess the reasonableness of the employer's decision to dismiss in the context of the particular case.
Before moving to discipline or dismiss an employee, a fair reason (such as misconduct or SOSR) would need to be established and a fair process should be followed. As noted in Part 1 of our article, this would involve discussing the issue with the employee at a meeting, understanding why the employee does not want to be vaccinated or disclose their status and looking for alternatives to dismissal. For example, an employee may have been advised not to be vaccinated for medical reasons and may be finding repeated testing challenging. Solutions might include allowing an exception, redeployment to another role, or potentially keeping the employee working from home where possible.
Using the NHS COVID Pass raises fewer discrimination issues than a compulsory vaccination programme because it provides other routes to demonstrating COVID status.
Using the pass could nonetheless still indirectly disadvantage individuals with characteristics that are protected under the Equality Act 2010, so the equalities issues still need to be considered.
What is clear is that this is a complex and emerging area of law involving a wide range of sensitivities and employers need to give careful consideration to the approach they want to take as well as being alert to developments in this area.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.