Can employers insist employees get vaccinated?

The rollout of the vaccination programme has been welcomed as the beginning of the end for the Covid-19 pandemic. For many employers, ensuring their workforce is vaccinated is an important step in getting their business back to operating as usual. However, the effects of ‘vaccine hesitancy’ and the anti-vaccine movement may mean that some employees refuse to be vaccinated.

‘How employers respond to choices around vaccinations brings into play employment law, data protection law and human rights,’ says Gillian Reid, Head of Employment with Ware & Kay, and who answers some of the key questions for employers.

Can we require employees to be vaccinated?

In short, probably not, although there may be a stronger case for workers in health and care settings.

In the UK, it is not compulsory to have the Covid-19 vaccine and the right to refuse medical intervention is well established. A blanket policy to compel employees to be vaccinated, for example by threatening disciplinary action, is likely to be a breach of an employee’s human right to privacy. This action could also risk discrimination claims, for instance, if the refusal is due to pregnancy or a religious belief. Employees could also argue that the employer’s insistence was draconian and breached the trust and confidence between them. In response, they could resign and claim constructive dismissal.

If you consider it is crucial to your business that staff are vaccinated, we can advise you on minimising the risks of insisting staff are vaccinated to remain in their role. This is likely to include:

• carrying out a risk assessment;
• looking at alternative working arrangements;
• justifying the requirement to be vaccinated;
• considering the employee’s response; and
• following a fair process.

Can we encourage staff to get the vaccine?

Yes, provided this is not done in a heavy-handed way. Employers have a duty under health and safety law to reduce the risks to their employees’ health. In many workplaces, this means that employers should encourage staff to be vaccinated. This can be done by emphasising the benefits to the individual, their colleagues, customers, and others they come into contact with through work.

Employers should acknowledge that this is a matter of personal choice while directing employees to reputable sources of information, such as NHS guidance on the vaccine, to help them make an informed decision. Employers may wish to offer paid time off work to attend a vaccination appointment.

Can we ask employees if they have been vaccinated?

Consider first if you really need to have this information. This is sensitive health-related information and is protected under data protection law. Carry out a data protection impact assessment (using guidance from the Information Commissioner’s Office).

If you do decide to ask staff, check that your data protection policies and privacy notices cover this. Ensure that this information is handled carefully in the same way as other information about an employee’s health, including restricting who has access to this information.

How do we handle staff tensions?

Where possible, try to minimise the potential for resentment by ensuring staff are not treated less favourably because they have or have not been vaccinated. For example, staff who have been vaccinated may be unhappy about being required to return to the workplace while those who have not been vaccinated continue working from home. Could the vaccinated employees retain some flexibility to work from home?

If employees get into heated conversations about the vaccine, staff should be reminded to discuss divisive issues with respect for other opinions. Personal attacks or mocking a colleague because of their views may amount to bullying or harassment which should be treated as a disciplinary matter.

When can we relax our Covid-secure arrangements?

It is unlikely that the levels of the virus will be sufficiently low to allow for the release of current arrangements for some months to come. In the meantime, employees should be encouraged to keep to the Covid-secure arrangements at work.

To find out how we can help you navigate this latest challenge presented by the pandemic and reduce the risks of employment tribunal claims, please contact Gillian Reid in the employment team on York 01904 716000 or Wetherby 01937 583210 or email gillian.reid@warekay.co.uk.