With the devastating effects that COVID-19 has had on businesses, the economy and us all personally, the vaccination roll-out is the much-needed light at the end of the tunnel.

One of the most prominent questions we are being asked is whether being vaccinated can be made mandatory in the workplace to protect staff and customers.

Current legal position regarding vaccinations

Currently, vaccinations are only available via the NHS. Despite the efforts of some businesses to obtain vaccines, even wastage, it is highly unlikely that commercial organisations will be able to buy it due to the national and global nature of the pandemic.

Also, as the government has not made having the vaccine mandatory, it is unlikely that employers will be able to force employees to do so.

Some employers are asking staff to let them know (and where possible provide evidence) that they have had the vaccine as part of their risk assessment for a COVID-secure workplace. We are also aware that certain HR software has been updated to assist employers with recording this. As this is personal and sensitive data, employers will need to ensure that this information is collated and stored in line with the Data Protection Act.

In terms of Health and Safety, all employers have a legal duty to protect the health, safety and welfare of its staff whilst at work. This applies to temps, casual workers, self-employed, clients, visitors and the general public. Whether staff have been vaccinated does therefore need to be taken into account when undertaking the risk assessment. That said, vaccinations do not offer total immunity and the effect of the vaccination on the transmission of the disease is still relatively unknown. In light of this, the Government’s advice remains the same for those who have been vaccinated and those who haven’t – continue working from home if possible, social distancing and wearing masks. An employer’s obligations also haven’t changed and a COVID secure workplace must still be provided.

Certain individuals cannot be vaccinated, for example, those with certain medical conditions, or may be due to their age, pregnancy, religious grounds or due to a belief that they hold etc. These individuals may have protection against discrimination under the Equality Act 2010.

Acas guidance states that employers should support and encourage its staff to have the vaccine. However, it does recognise that for some jobs, it might be an inherent requirement of the position that the employee is vaccinated.

Can an employer make it mandatory to have the vaccination when employing new staff?

It is possible for employers to include in the contract of employment for new staff that they must show evidence that they have been vaccinated, as a requirement of their employment.

For the reasons set out above, however, this should be entered into with some caution as an individual may have a protected reason why they cannot be vaccinated. By having a blanket requirement in the contract of employment, therefore, an employer could be directly and/or indirectly discriminating against an employee under the Equality Act 2010.

If there aren’t any reasons why the individual cannot be vaccinated, then the employer may be justified in refusing to employ an individual due to the need to provide a safe place of work for its staff.

Can an employer enforce mandatory vaccinations for existing staff?

To make the vaccinations mandatory, an employer would have to change the employees’ existing contracts of employment to include a clause dealing with the requirement to have the vaccination.

Usually, an employer would seek agreement from the employee to the change being made. However, those who are against being vaccinated or who cannot be vaccinated for any reason, are unlikely to agree. The options then become more complicated as an employer would either have to terminate and re-engage on a new contract or unilaterally impose the change. Both of these options require collective consultation, potentially notifying the Secretary of State and serving notice.

These options are not attractive as they both come with the risk of unfair (or constructive unfair) dismissal claims (where an employee has more than 2 years’ service, or less if they have raised health and safety issues), together with potential discrimination claims.

In any event, just because an employer has a contractual clause dealing with vaccinations, does not necessarily allow an employer to discipline or dismiss an employee if the contract is not followed. The employer must still act reasonably, have a fair reason and follow a fair process prior to either discipling or dismissing an employee. We consider that Tribunals are likely to be sympathetic to employees where an employer is essentially requiring them to have a minor medical procedure.

That said, the circumstances of the individual employee, the employee’s role within the business and health and safety have to be taken into account. As such, it may be a reasonable and proportionate step to protect the vulnerable, such as employees working in care homes or employees who are required to travel overseas, for it to be a requirement of their role. Bear in mind also, that a client of the business may require it.

Prior to commencing any process, employers should exhaust other roles or duties available, the continued use of PPE and other measures, whether there are any other options available and balancing the risks of the individual (any client) and the rest of its staff. Advice should be taken for specific cases.

See below for our practical tips.

What about staff who refuse to attend work until everyone has been vaccinated?

If an individual is shielding and cannot work from home, they can currently be furloughed. Given that the furlough scheme is available until 30 April 2021, a shielding individual should remain furloughed, where at all possible.

The government is reviewing the restrictions at the end of February and we understand they will shortly set out the roadmap to come out of Lockdown 3. This could result in shielding being amended or removed. The government’s advice and information about vaccines will have to be reviewed at that time.

If an employee is simply nervous about returning to work but not shielding, an employer should support and encourage the employee to return to work, ensuring the workplace is COVID secure and putting in place any additional protections necessary. If an employee has raised health and safety concerns, an employer must address these as failure to do so could result in exposure to claims which are potentially very costly and time consuming.

Practical Tips

In light of the above, our practical tips for employers are as follows:

• Rather than attempting to change contracts of employment, implement a COVID policy which deals with vaccinations.

• The policy should encourage and support staff to be vaccinated, where offered. Employers may wish to send staff details of why they should be vaccinated such as: how it reduces the spread of the virus; minor side effects reported; reducing the numbers becoming ill and hopefully allowing us all to get back to some semblance of normal.

• Ensure that the policy deals with all those who can be immunised, rather than stating all staff. Refer to an equality and diversity policy and ask employees to disclose (on a private and confidential basis) any reasons why they cannot have the vaccine.

• Allow staff time off work (paid or unpaid), potentially at short notice, if they are called to be vaccinated. You can ask for proof, where this is possible.

• You will need to continue with the procedures and safe systems of work for a COVID secure workplace for the time being. These should continue to be enforced.

• The Government has announced that employers with over 50 staff will now be able to have the lateral flow (30 minute) testing. As such, employers should be considering including testing in their policy.

If you have any queries regarding the contents of this article or if you would like assistance with a COVID policy, then please contact Andréa or Rachel.