If you have any questions on the scheme or need advice, please contact Dawn Robertson on +44 (0)131 220 9579 or at dawn.robertson@rooneynimmo.co.uk.
As the COVID-19 vaccination process ramps up, with the UK government having administered the first dose of vaccine to 15 million people in four key groups by mid-February, businesses are starting to consider what they should be doing about the vaccination process. Specifically, should (or more importantly, can) they make the COVID-19 vaccination mandatory (a) to their existing workforce and (b) to those they wish to recruit?
Getting the COVID-19 vaccine is not a legal requirement: the UK government has not legislated for the vaccine to be mandatory. [Discussion about vaccine passports and the like is widespread but at present, there is no stick attached to the proverbial carrot of vaccination.] The approach to mandatory vaccination is similar in the US, but there are some nuances. Read our article on US Mandatory COVID-19 Vaccination Policies: 6 Things To Consider.
So, can an employer implement a mandatory vaccination policy across its workforce?
Implied into any employment contract are a number of duties. One such duty incumbent upon any employee is the duty to obey the lawful and reasonable orders of their employer. On the face of it, therefore, provided the instruction meets the test of being “lawful and reasonable,” the implied duty could cover an employer implementing a mandatory vaccination policy across its workforce. However, there are a number of problems with this approach, outlined below.
Change of contractual terms and conditions
While the implied duty to obey a reasonable instruction is read into every contract of employment, introducing a contractual requirement that existing employees obtain the COVID-19 vaccination is unlikely to be viewed as falling within this implied duty except in the most exceptional of cases. As such, the requirement will likely constitute a change to existing terms and conditions and will therefore require the consent of the employee (in effect, negating the concept of vaccination being “mandatory”).
Alternatively, an employer could either seek to unilaterally introduce the contractual change or seek to terminate the employment and immediately offer to re-employ on the new terms. Both options have considerable risks attached to them. Introducing such a requirement for new employees only would avoid this risk but would do little to ensure vaccination across the workforce in the short term.
ACAS guidance
Current ACAS guidance is that employers should support staff in getting vaccinated but cannot force them to do so, except in circumstances where the individual requires the vaccine to do their job, e.g., where their role entails overseas travel, and they need to be vaccinated for that purpose.
The vaccine may be unsuitable for some employees
It is believed that, for the large majority of people, the COVID-19 vaccines routinely deployed in the UK are safe. However, it should be noted that the Moderna vaccine is currently only authorised for use in people aged 18 years or over so is not an option for young workers. In addition, there are some groups that may need to take into account additional considerations when deciding whether to get the vaccine. These include people with allergies, people who are pregnant or breastfeeding people who have tested positive for COVID-19, and people with underlying medical conditions.
In addition, it is possible that the vaccine may be contra-indicated in respect of certain medical conditions amounting to a disability under the Equality Act 2010. In such circumstances, a policy of mandatory vaccination might be unlawful by virtue of being a “provision, criterion or practice” (PCP) which would put the disabled person at a particular disadvantage when compared with others.
As a further word of caution, adverse reactions to the COVID-19 vaccinations currently available, from mild to serious, have been widely reported. Employers should be aware of their duty to take reasonable care of their employees’ health and safety and, in the event of an adverse reaction, causing physical or mental injury to an employee made to take the vaccination as a result of their employer’s mandatory vaccination policy may have a claim against their employer for breach of that duty.
As a result of these exceptions, it is unlikely that an entire workforce can be vaccinated in any event and, of course, any vaccination requirement would have to be carefully worded to allow for such exceptions.
Vaccination may be against an individual’s religious or philosophic beliefs
Like disability, a person’s religious or philosophical beliefs are a protected characteristic under the Equality Act 2010. Given the novelty of the pandemic, at least in the western world, there is an absence of case law to guide us as to whether a mere objection to the COVID-19 vaccination might constitute a “philosophical belief” for the purposes of the Act. However, it is already known that certain religions advocate against certain types of medical intervention (e.g. Jehovah’s Witnesses believe that it is against God’s will to receive blood and, therefore, refuse blood transfusions) and certain philosophical beliefs are protected by the Act (e.g. ethical veganism – confirmed by the recent case of Casamitjana v League Against Cruel Sports, making it unlawful to impose a requirement ).
Given that gelatine derived from pigs is often used in mass-produced vaccines, the latter example is a potentially live issue for employers seeking to impose mandatory vaccination across their workforce.
What should an employer do to protect their workforce and patients, customers, or clients where some employees have not been vaccinated?
Given that the immediate vaccine rollout is focused on targeting those most at risk of the virus, there will be a large proportion of the population who will not immediately be offered vaccination even if they would prefer to receive it.
As things stand, this will be the case for those employees under the age of 50 years who do not have underlying medical conditions (and have not been prioritised as a result of the nature of their employment). Given that protective measures (face coverings, physical distancing, and the like) are likely to remain in place for a considerable period of time, one envisages that employers will be expected to maintain such protective measures for the benefit of staff, patients, clients and customers alike unless and until the public health guidance is relaxed.
This will not only ensure compliance with public health guidance, but it is also likely to fulfill employer obligations in respect of health and safety requirements (although of course this should be separately assessed with reference to the latest advice from the Health and Safety Executive – and will also protect vaccinated and unvaccinated employees alike.
Given the risks of a mandatory vaccination policy, what are the alternatives?
For the reasons outlined above, the risks of a mandatory vaccination policy are likely to outweigh the benefits at the present time. In the circumstances, a better approach may be to consult with workforces and unions to achieve a high level of voluntary vaccination across the organisation. This could involve providing employees with information about the pros and cons of vaccinations and identifying ways in which employees can be supported from a practical point of view to attend for their vaccination.
Can an employer discipline or dismiss an employee who refuses to have a COVID-19 vaccine?
For the reasons noted above, it is unlikely at the present time that an Employment Tribunal would view favourably the disciplining or dismissal of an employee because they refused to be vaccinated.
Can an employer refuse to allow an unvaccinated employee into workplace premises?
It is possible that an employer may wish to refuse entry into the workplace of an unvaccinated employee. Again, there are many reasons why this is unlikely to be considered fair, particularly, given that many employees will simply not have the opportunity to be vaccinated for some considerable time yet. Reductions in pay and deduction(s) from pay as a result of such a refusal could lead to a breach of contract and/or unlawful deductions from wages claims could arise in the event unvaccinated employees’ pay is affected because they are not permitted to attend work.
Finally, are there any data protection issues for employers to be aware of?
Under the General Data Protection Regulation (GDPR), information relating to a person’s health clearly falls within the definition of “sensitive personal data” and therefore attracts a special level of protection. As such, while the notion of individuals holding immunisation passports appears to be gaining popularity, it remains the case that employers would have to take special care in the processing of such sensitive information about their employees, consider whether they have grounds to process such data, to begin with, and whether the use of the data is necessary and relevant.
One might further argue that an individual would be entitled to withhold from their employer information regarding whether or not they have in fact received the COVID-19 vaccine without consequence. In the circumstances, potential data protection and privacy implications of any measures adopted by an employer in this area will also need careful consideration.
If you have any questions on the scheme or need advice, please contact Dawn Robertson on +44 (0)131 220 9579 or at dawn.robertson@rooneynimmo.co.uk.
This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.
