Emma-Louise Hewitt Head of Employment Law at Sydney Mitchell LLP
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Emma-Louise Hewitt Head of Employment Law at Sydney Mitchell LLP
Sydney Mitchell LLP

Member Article

Can an employer insist that its employees get the COVID19 vaccination?

The rollout of the COVID19 vaccination is well underway in the UK with those 70 and over being vaccinated first. However, as the scheme continues to move at pace with hundreds of thousands being vaccinated daily, many employers will be considering the benefits of the vaccine to their employees and workplace comments Emma-Louise Hewitt, Head of Employment Law at Sydney Mitchell LLP.

Emma says:

As with many others, employers will likely encourage their employees to have the vaccine without making it a requirement, a bit like the flu jab. However, before employers consider whether they will require employees to have the vaccine, consideration needs to be given to the “needs of the business.” Before making a stance, I urge employers to consider the issues before requiring employees to be vaccinated. Getting it wrong can raise many issues such as unfair dismissal, discrimination, data protection, health and safety considerations and, yes people will quote human rights.

Can employers make having the vaccination a requirement?

It can be argued that an instruction to have the vaccine could be regarded as a ‘reasonable instruction’ on the part of the employer. However, this will depend on the circumstances of each case. Each business is different and has different requirements. The employer will need to consider the relevant factors before it can establish whether making the vaccine a requirement is a reasonable instruction. For example, would it be reasonable for an employer who provides professional services makes it a requirement for its employees to have the vaccine when all services are offered remotely, compared to a social care employer whose employees care for vulnerable people? I would suggest not, a refusal from an employee in social care not to take the vaccine could put those in the employees’ care who may be vulnerable at risk. But the employer in the professional services sector cannot demonstrate the same reasoning to instruct its employees to take the vaccine.

Can an employer dismiss an employee for “failure to follow a reasonable instruction“ to get the vaccination?

Ordinarily, a failure to follow a reasonable instruction could lead to a fair dismissal. But the instruction itself needs to be 1) reasonable and 2) a fair process needs to be followed. Each case needs to be considered on its own individual facts and in this instance, only an employee who unreasonably refuses to be vaccinated could be fairly dismissed. As with any disciplinary allegation, the employee must be given the opportunity to set out their reasons as to why they will not get vaccinated, which the employer will then need to consider. This enables a fair process to be carried out and the employer to consider the reasonableness of the employees’ refusal. Use the example above, would it be reasonable to dismiss an employee from the professional services employer as a result of their refusal? I would argue not. However, what if it was the employee from the social care employer? It could potentially be fair, but consideration needs to be given to all of the facts before a decision can be made including whether there are any alternatives to dismissal.

What about discrimination?

This is slightly more complex and will need real consideration by an employer as any difference in treatment between employees who been vaccinated and those who have not, could amount to indirect discrimination such as age, sex and pregnancy and disability. In addition religion or belief may also play a part in an employee’s decision not to be vaccinated. All this needs to be taken into consideration.

The most likely scenario I can see arising is an employer putting in place a policy where employees who have not been vaccinated cannot return to the office. Another likely scenario is where an employee who is off with COVID19 but chose not to have the vaccination is treated differently in terms of their sickness absence including payment.
However, in addition to those other scenarios may arise which include, pregnancy, disability and belief. Pregnant women have received conflicting advice on whether or not they should have the vaccine. I for one will not be getting the vaccine whilst I am pregnant as the initial position was most definitely that it was not recommended for those who are pregnant, breastfeeding or planning to get pregnant. Some employees may be advised by medical professionals not to have the vaccine due to a medical condition, so are unable to have it for medical reasons. Other employees may have a belief that prevents them from having the vaccine. In all these circumstances, the employer will need to understand why before making any decision and discuss this with the employee.

Why is data protection an issue?

If an employer requires evidence of vaccination from an employee, data protection issues will arise. Therefore, it is important for employers to consider why they need the evidence and whether it is appropriate for their business needs. To ascertain this, the employer will need to carry out a data protection impact assessment considering why the data is needed, its purpose, how it will be held, who will access it and how it will be held securely. However, when carrying out the risk assessment, will a simple response suffice or will more detail need to be provided? What level of detail should be retained by the employer and will the holding of this lead to other issues as to how the information is to be processed?

Do employers need to consider health and safety issues?

Employers are under an obligation to reduce health risks its employees under health and safety legislation. The vaccine should be considered as part of any COVID19 risk assessments carried out by the employer as an additional measure to control the risks of catching the virus in the workplace. This will be alongside the additional measures such as homeworking, social distancing, face masks, hand sanitiser etc. All in all employers should not be making any rash decisions about the vaccine without taking the appropriate advice and guidance as cases are yet to be tried and tested, so a measured and considered approach needs to be taken.

This was posted in Bdaily's Members' News section by Sydney Mitchell LLP .

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