Legal update 2104: 23/2/21 by Sandy Adirondack, reproduced here with thanks (to sign up to Sandy’s bulletin directly, please see bottom of page):
Pimlico Plumbers in London made national headlines in mid-January by saying all staff would have to be vaccinated against coronavirus – even though at that time vaccination was basically available only to care home residents and over-75s, very few of whom were likely to be employed by Pimlico Plumbers. (Though the company had also been in the news 15 years ago for having a 100-year-old van cleaner, reportedly the oldest employee in the UK and the oldest to run the London Marathon. He turned out maybe not to have been 100 and thus didn’t get into the Guinness Book of Records, but that’s a different story…)
Following the company’s high-profile announcement, many employers rushed to say they would implement “No jab, no job” policies. But this can be a high risk strategy, and Acas guidance on working safely during the pandemic says that employers should support staff in getting the vaccine, but cannot force them to be vaccinated. Even with the government’s new goal of all adults being offered vaccination by the end of July, it will be several months until vaccination is available to all age groups, so requiring all staff to be vaccinated could be age discrimination. Even when it is available to all age groups, a mandatory requirement could lead to claims for other types of discrimination, unfair dismissal, breach of human rights, and/or personal injury.
This update outlines legal and policy issues around making it mandatory for staff to have Covid-19 vaccination, and why it is likely to be legally much safer to encourage staff to be vaccinated, rather than require it. Unlike my usual updates it is structured around information resources, annotated to provide a very brief summary of what they cover. All of the guidance emphasises that as vaccination is rolled out – and even if an employer makes it mandatory – vaccination is not a substitute for other measures such as social distancing, face coverings, sanitising and hand washing, and these must be continued for the foreseeable future.
As background: The Public Health (Control of Diseases) Act 1984 s.45, as amended by the Health and Social Care Act 2008, authorises the government to make regulations to prevent, protect against, control or provide a public health response to the spread of infection or contamination in England and Wales, and to make regulations relating to international travel. S.45E of the Act explicitly states that such regulations must not include provision requiring a person to undergo medical treatment, which includes vaccination and other prophylactic treatment. Therefore the government cannot make vaccination mandatory, either for the general population of England and Wales or for specific sectors, without amending the legislation. I assume there is equivalent legislation for Scotland and Northern Ireland, but I don’t have capacity to look for it.
Nor is there any statutory or common law basis for an employer to require staff to be vaccinated, unless this is included in the contract of employment. An employer who wishes to implement a mandatory vaccination policy could include it in the contracts for new employees, but would need to ensure it would not give rise to claims of indirect discrimination. For existing employees, introducing a mandatory vaccination policy would require variation of the contract, or the employer being very confident that if they were challenged, the requirement for staff to be vaccinated would be seen by an employment tribunal or court as a “reasonable instruction”. Even if the requirement would be a reasonable instruction, the employer will have had to have made a realistic risk assessment, and considered alternatives such as the employee working from home.
In relation to reasonable instructions, Baker McKenzie solicitors say [see first item under Shorter resources, below], “The government has announced that the Covid vaccine will not be mandatory even for frontline workers in the NHS or care sector. Previous statements given by the prime minister and the minister for Covid-19 vaccine deployment are that the government will not endorse or approve any mandatory vaccination programme implemented by UK employers. Nor does mandatory vaccination form part of the HSE’s guidance on how to make the workplace Covid-secure. If there are less intrusive measurers to make the workplace Covid-secure (which we think will apply in most cases), a blanket policy of requiring vaccinations … will not be justifiable. Employers who discipline or dismiss employees for non-compliance may face unfair dismissal claims. This is particularly risky for certain categories, where there may be discrimination risks. There may be some exceptional cases where disciplinary action/unpaid leave may be justifiable, for example where the employee’s role requires them to travel and the host country requires prior vaccination. However, even then, the employer should consider whether the instruction is reasonable in the individual case.”
Most of the legal issues arising from the employer’s stance on vaccination (for example in relation to health and safety, data protection, potential claims for breach of contract, unfair dismissal or personal injury) apply in the same way throughout the UK. But discrimination law is different in Northern Ireland, and the rules relating specifically to coronavirus are devolved to Scotland, Wales and Northern Ireland. Gov.uk resources on coronavirus and vaccination include, where applicable, links to separate resources for other parts of the UK.
A further update in a couple of days will cover workplace testing for coronavirus.
Gov.uk coronavirus hub
Always start on the Gov.uk coronavirus hub when looking for government guidance. The guidance is often spread among numerous separate webpages, which should be but often aren’t cross-referenced – so if you start with one webpage, it’s easy to miss others with essential and sometimes updated information. The relevant section on the hub will include all applicable pages, so starting there will reduce the risk of missing an important webpage. Where applicable there are separate links for Scotland, Wales and Northern Ireland, either on the hub page or on individual webpages. The sections are:
- Guidance and support
- What you can and cannot do
- Testing and self-isolating
- International travel
- Schools, universities, education and childcare
- Work and financial support
- Businesses and self-employed people.
Data protection and coronavirus information hub
Information Commissioner’s Office. The “Advice for organisations” section includes data protection guidance on Covid-19 testing and on vaccination.
Preparing for the Covid-19 vaccination: Guide for employers
CIPD, most recent update 15 February 2021 but will be regularly updated. Essential reading for all organisations, even if they are not considering requesting or requiring coronavirus tests or vaccination and even if they have only volunteers, with no employees. Covers:
- The government’s rollout plans.
- Employees already vaccinated.
- Planning for wider rollout.
- Encouraging vaccination and ways to communicate encouragement.
- Adopting a vaccination policy.
- Risk assessments.
- Planning for different groups of employees: those who can’t have the vaccine; those who may be hesitant; pregnant or breastfeeding employees; ethnic minority groups.
- Employees who refuse the vaccine, including refusal due to philosophical belief or religious belief.
- Options if staff refuse vaccination.
- Making vaccination mandatory: employment contracts; dismissal for refusal to be vaccinated.
- Future considerations: planning for a return to the workplace; asking employees and potential employees if they have had the vaccine; data protection and privacy; offering vaccination as a benefit.
- Other issues: agency staff, contractors, visitors and other third parties in the workplace; vaccination for staff who travel for work; staff in international offices; dealing with disputes about vaccination.
From the approximately 40 articles I have read about coronavirus vaccination and the workplace, here are a few recommendations.
Mandatory vaccinations in the workplace: Key considerations for UK employers
Baker McKenzie solicitors, 20 February 2021. Colourful one-page PDF chart setting out the legal considerations and logistical challenges in trying to introduce a mandatory vaccination policy, including:
- Can employers precent employees from returning to the workplace if they have not been vaccinated?
- Is it a lawful instruction? [This section is reproduced in my introduction above.]
- Discrimination risks.
- Health and safety.
- Personal injury claims.
- Data protection.
- Time off for vaccinations.
- Employee relations.
The articles below are shorter and less comprehensive than the CIPD briefing [under General resources, above] and are not a substitute for it, but are good starting points. The articles overlap and each provides answers to a series of questions, but they emphasise different issues. I have given very brief summaries of the answers, but my summaries must not be relied upon!
Covid -19 vaccinations: Key issues for employers
Stevens & Bolton solicitors, 5 February 2021. The next-to-last section, on record keeping, has more about data protection than the other articles.
- Can we require all of our employees to be vaccinated against Covid-19? (Very short answer: generally no.)
- Can we prevent our employees returning to the workplace until they have been vaccinated? (Yes, if they can work from home; otherwise a risky tactic.)
- What discrimination risks do we face if we take a firm line on staff having vaccinations? (Potentially indirect discrimination on the basis of pregnancy and maternity, disability, age, religion or philosophical belief.)
- Is there a personal injury angle? (Yes, and an employee could potentially bring a claim against the employer.)
- Can we legitimately encourage employees to have the vaccine? (Yes. Encouragement is good.)
- Do we need to consult staff about our proposals with regard to vaccines? (Yes, if measures relating to health and safety may be introduced.)
- Can we gather evidence of and keep a record of employees who have been vaccinated? (Yes, but there can be discrimination and data protection consequences if it’s not done properly.)
- Does the advent of the vaccination mean that we can remove Covid-secure measures in the workplace? (No!)
No vaccine, no job? Can employers insist their staff take the Covid-19 vaccine?
Irwin Mitchell solicitors, 19 January 2021. The third and fourth sections have more about “reasonable instruction” than the other articles.
- What has the government said about vaccination? (Short answer: people will not be forced to have a vaccine if they don’t want one.)
- Do the rules about health and safety at work provide any guidance about Covid vaccinations? (No.)
- Is it a ‘reasonable instruction’ to ask staff to take the vaccine? (Employment lawyers disagree. Read this before even thinking about requiring vaccination, rather than just encouraging it.)
- What can we do if staff refuse our reasonable request to be vaccinated? (Depends on their reason.)
- Can we dismiss anyone who unreasonably refuses to be vaccinated? (Potentially yes … but with the potential to get it very wrong. Take advice.)
- Can we insist that our staff tell us they’ve been vaccinated? (It depends.)
Covid 19 vaccinations: Key considerations for UK employers
Katten Muchin Rosenman solicitors, 8 February 2021. The third section has more about potential discrimination claims than the other articles.
- Employer’s reasonable instructions. (Reasonable in certain circumstances.)
- Employee’s reasonable refusal. (“There are a raft of genuine and reasonable reasons why individuals may not wish or be able to be vaccinated”.)
- Potential discrimination claims. Particularly excellent section – read it.
- Potential unfair dismissal claims. Another particularly good section.
- Data protection issues.
Can employers require staff to have a Covid-19 vaccination? This one seems to be more open than the other articles to the idea of workplace mandatory vaccination, but still urges caution and taking legal advice before seeking to implement such a policy.
Hill Dickinson solicitors, 19 February 2021.
- Will the government make a Covid-19 vaccination mandatory? (Government has said it does not intend to.)
- Can an employer require its staff to have a Covid-19 vaccination? (“Sadly, we do not know yet … It may be some time before we have some settled legal principles.”)
- What are the main legal risks employers face from a mandatory vaccination policy? (Contractual issues; collective bargaining and industrial action; constructive unfair dismissal; discrimination; personal injury.) This section is more detailed than in the other articles.
- Are there any specific risks for public sector employers? (Yes. Human rights; public sector equality duty). “Public sector” in this context could include private sector bodies (including charities etc) undertaking public functions.
- What are the potential benefits of requiring mandatory vaccination? (Health and safety; increased productivity/business performance.)
- What can an employer do to encourage voluntary vaccination? (Some good ideas here.)
- Should employers balance the risks versus the benefits of mandatory vaccination? (Questions to consider include whether a mandatory vaccination policy is necessary given the nature of the work; are other control measures sufficient at minimising the risk of transmission; is there widespread support for or opposition to mandatory vaccination among the workforce; if the workforce is unionised, what are the trade union’s views; can the objectives be achieved in other ways e.g. incentivising voluntary vaccination; and do the potential benefits to be gained by requiring mandatory vaccination outweigh the risk of claims.) The authors recommend that any employer contemplating a mandatory vaccination policy should obtain legal advice tailored to its own circumstances.
Vac to work, vac to play
Boyes Turner solicitors, 9 February 2021. Short article covering much the same as the above articles, but with a final section specifically about customers. This would also include service users, clients etc. It starts, “In respect of customers, as the right to access services as customer is not absolute, there would seem to be more scope in requiring vaccines in order to access certain venues and services. This is the case especially if the business considers the only way it can feasibly operate without being a vector of infection is to require customers to be vaccinated.” But it then mentions the risk of claims for discrimination in the provision of services etc. This is where government discussions about a vaccine passport will be relevant.
Anti-vaxxers and the new workplace divisions
CMP, 9 December 2020. “The clash in perspectives over the pandemic is more urgently felt and more affecting than Brexit ever was.” This thoughtful short article is not about vaccination as such, but about what organisations need to have in place to deal with Covid-related workplace tensions. These may arise not just in relation to vaccination, but also between those having to work no choice but to work face to face and those who can work from home, those having no choice but to work from home and those who can have the social contact of working face to face, those who are furloughed and are seen as being paid for not working, and similar issues.
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