We take the view that as the law stands it is not possible for an employer to require employees to take a Covid-19 vaccine, and even though it may be desirable this can best be achieved by employers taking a consensual and voluntary approach.
Health and safety risk assessments in respect of the workplace should be reviewed in light of the new strain as well as the vaccine programme, and employers may wish to consider individual risk assessments for vulnerable employees. Indeed there is a case for arguing that we are rapidly approaching a scenario where individual risk should be a key factor.
Effective communication and engagement with staff remains crucial, and to this end we recommend reviewing workplace risk assessments as vaccines become more widely available and inoculation numbers rise, particularly in the most vulnerable groups.
And forward-thinking employers, who may have introduced other policies to reflect the reality of Covid-19 being amongst us, may now consider adopting a vaccination policy.
What is the government saying about the vaccine?
In England the priority list for receiving the vaccine is set by the Joint Committee on Vaccination and Immunisation (JCVI) which currently recommends vaccines going to the elderly who are most at risk from Covid-19 of serious disease and older care home residents, followed by NHS front-line staff, care home workers and then others until everyone over 60 and younger people with underlying health conditions has been offered a vaccination. The practical reality is that people outside this substantial group will be unable to access a vaccine in the UK until the late Spring/early Summer at the earliest and this has practical implications for employers.
The emergency legislation to address Covid-19 has been made largely under s.45E of the Public Health (Control of Disease) Act 1984 (interestingly thereby bypassing immediate parliamentary scrutiny), but even so any health protection regulations "may not include provision requiring a person to undergo medical treatment" and "medical treatment" is defined to include "vaccination and other prophylactic treatment". The Government's Green Book on immunisation provides that consent from the individual must be obtained prior to the start of any medical treatment including the administration of all vaccines. Similarly, the NHS Constitution includes a non-enforceable request to "please participate in important public health programmes such as vaccination". Consent and voluntary participation seem to be the key here.
In November 2020, Matt Hancock, the Health Secretary reiterated that the government was not proposing to make any vaccination for Covid-19 mandatory (and there is currently no legal basis upon which to do so).
Given that the government accepts that it cannot mandate people to take a vaccine, it is equally very unlikely that the employer could lawfully require employees to take one. Vaccination is not a legal requirement and so cannot be subject to enforcement.
However, the flip-side of this is the much-discussed vaccine passport or at least those measures that businesses may impose on customers to make sure those who wish to travel or use their services have been vaccinated beforehand. For example, border control officers on the direction of governments (and by extension airlines) may well require negative Covid tests and/or prior vaccination or quarantine for international travellers.
Health & Safety
Does the duty imposed upon UK employers to provide a safe working environment under the Health and Safety at Work Act 1974 require that employers may be obliged to make the vaccine available to their employees? In short, no and in any event there is a stronger prevailing consensus that the duty would never extend that far.
Covid-19 risk assessments remain at the heart of controlling the risk of transmission in any workplace setting but without losing sight of the employer's obligation to do only what is reasonably practicable. This should arguably now include consideration of the vaccine programme roll-out and whether previously adequate control measures need to be strengthened due to the greater transmissibility of the new strain. We expect the Government to refresh its own sector guidance notes on Covid-Safe workplaces in the coming weeks (or even days) given the current spread of the virus. We may see a return to stricter social distancing requirements (as recently advocated by Sage) the usage of face coverings in all indoor workplaces and increased ventilation requirements. The more transmissible strain of the virus now in circulation and the limited current availability of vaccines now makes a proactive review of workplace risk assessments timely.
There may need to be separate risk assessments for those who choose not to be vaccinated. Encouragement should be given to staff, similar to those relating to downloading of the NHS Test and Trace App. Again the key will be to consult with staff as to occupational health risks and ways to manage them.
Can employers require employees to take the vaccine?
We do not think so. Any attempt to require vaccination of staff will be fraught with risks such as infringement of human rights, possible criminal action (non-consensual vaccination may amount to assault), discrimination and contractual issues. So we urge caution and recommend that each case is considered carefully and on its own merits.
The only circumstances where it might be possible for employers to require employees to be vaccinated (or impose disciplinary sanction for refusal) are where they are required to work in very small spaces which cannot be made Covid-secure or where the employee cannot perform their role without having been vaccinated. One example might be those employees who are required to travel abroad although in practice the rules are likely to be set by the governments of each country. Another example, in line with the current priority of vaccine receivers, is in the social care sector where employers may be justified in issuing a reasonable instruction to employees to take the vaccine as refusal to do so would put vulnerable people at risk.
It is more likely, however, that an increasing number of employers will encourage, rather than attempt to coerce, employees to take the vaccine especially in the case of high hazardous workplaces such as those where there has been a high incidence of transmission or elevated Covid-19 death rates including for example food manufacturing (particularly frozen/chilled production), security guards, public service (bus/coach/taxi) vehicle drivers, construction workers, cleaners, and those working in essential retail which has stayed open throughout the pandemic .
ACAS has taken the view that employers are not able to require employees to take the vaccine and should listen to concerns if employees refuse to take it. If the reasons for refusing the vaccine are unreasonable, then employers may be able to take disciplinary action. The relevant factors are stated to be:
- Whether there is a vaccine policy in place
- Whether the vaccine is necessary to do their job
- Whether an employee's reason for not wanting the vaccine might be protected under the Equality Act 2010
Human rights concerns are at the forefront of this issue, not least Article 8 (Right to respect for private and family life) of the European Convention on Human Rights. It is possible, though unlikely, that Article 3 (Prohibition of torture or degrading treatment) may also be engaged.
Given the priority groups for the vaccine are determined mostly by age, there is a real risk of discriminating because of age. Employers should navigate around this issue with care and precision.
Being able to objectively justify any differential treatment will be key.
Religion or belief discrimination
Can the 'anti-vaxxer' movement be a philosophical belief under the Equality Act such as to invite protection? Employees may rely on their religion to argue that not taking a vaccine is part of their religious belief that ought to be protected. Still others may argue that they cannot take a vaccine due to their 'veganism' belief. Given that veganism is already a protected belief, this may be protected too.
Severe cases of fear of needles (trypanophobia) may constitute a disability as its consequences may include dizziness, fainting, palpitations and 'emotional or physical violence'. Equally those who have been advised not to have the vaccine due to a medical condition may argue that their disability prevents them from accepting a vaccination.
Pregnancy and maternity discrimination
Public Health England advice states that "women should be advised not to attend for vaccination if they are, or may be pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine". Any requirement to take a vaccine should have a carve-out for pregnant women so that the employer does not fall foul of the Equality Act 2010 provisions.
What about data protection?
Personal data which may collected in connection with employee vaccination constitute special category personal data and will need to be processed in line with GDPR and DPA 2018.
In terms of legal basis for the collection of such data, a data protection impact assessment (DPIA) to assess if the processing is “necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment” and “providing for appropriate safeguards for the fundamental rights and the interests of the data subject”.
The DPIA will need to establish the appropriate lawful basis for the processing of such data, if justified, such as legitimate interest and/or legal obligation, bearing in mind the specific circumstances, nature of the employer's business and sector.
Should we have a vaccine policy and, if so, what should it include?
Although it may seem premature given where we are in the progress of the roll-out of the vaccine, we advise employers to start thinking ahead. Any vaccine policy must be closely aligned with the employer's health and safety risk assessment (see above on the importance of making sure that H&S risk assessment is updated and monitored) and, depending on the nature of the organisation, employers may wish to consult with employees or their representatives in drawing up a vaccine policy.
Given that there will be very few circumstances in which employers may be able to require employees to take the vaccine, any policy should obviously not seek to make it a mandatory requirement. Instead we recommend employers deal with the following elements in the policy:
- Background and the government's position on the vaccine (the government's stance may change as knowledge and circumstances develop so it will be important to pay close attention to this)
- Health benefits of having the vaccine
- Potential health risks (with links to relevant government and health authorities websites)
- Vaccine training
- Human rights and discrimination concerns
- Covid-Secure measures which employees must adhere to in any event such as testing, mask wearing, social distancing, hand-washing and self-isolation where required (and that failure to comply may lead to disciplinary measures)
- That the policy will be maintained and reviewed frequently in line with government guidance and policy
It would be important to make sure that the vaccine policy is consistent with other temporary or permanent policies the employer has put in place in light of the Covid-19 pandemic such as a home-working policy, sickness policy and flexible working policy.