27 January 2022 - Article
In short, no. Whether or not an employee is vaccinated is a personal matter for each employee. However, can you have a policy for treating employees differently if they are not vaccinated?
Despite universal vaccination appearing to be a positive development for most employers, it is also a surprisingly complex issue and factors to be taken into account will shift over the next few months as the vaccine rolls out, and our understanding of Covid (and its many variants) progresses. Charlie Mullins of Pimlico Plumbers has already said that his company’s new hires must be vaccinated for Covid. What should you take into account if you are thinking of a vaccination policy for your own organisation?
What is the rationale? We know that the Covid vaccines reduce but do not entirely eliminate the risk of catching Covid. It is hoped that the vaccines will also reduce the risk of transmitting Covid, although more data is needed on this point. Also, with a range of vaccines now available, it is likely that the data will be different for each vaccine.
For now, social distancing and PPE will continue to be necessary, likely until the levels of Covid circulating in the population are dramatically reduced. You should therefore carefully assess the effect of any or all employees having had a vaccine as part of your risk assessment when considering risks to the employees themselves, their colleagues and customers/suppliers and use this risk assessment to support your policy and any decisions made. The risk assessment should be kept up to date.
Who is the vaccine available to? This will be an important factor in deciding when to put a policy in place. In many non-healthcare workplaces, employers will have to wait until Autumn 2021 before all adults have been offered the vaccine. There may be grounds for treating those who have been vaccinated differently to those who have not, or treating those who have refused a vaccine differently from those who have not been offered one, but you will need to take into account a number of the other factors set out below. Privately available Covid vaccinations may be available at some point, although it is hard to see these being readily commercially available in the UK while the national vaccine roll out (at least for more vulnerable groups) is still going ahead.
Can you try to persuade employees to take the vaccine? For most employees the vaccine will offer them some protection, and may well also help protect colleagues and clients. If employers consider there are grounds to try to ensure all staff are vaccinated based on their risk assessment, they may be under a duty to ensure that all employees have access to accurate information about the benefits (and indeed risks) of the vaccine. This may also be a sensible step for all employers to take. Whether it is appropriate to go further will depend on the risk assessment and the employee’s grounds for refusal, if known (bearing in mind that employees may not give the real reason for refusal).
What can you ask employees about vaccination? Whether or not an employee has been vaccinated is likely to be considered special category health data. In order to comply with ‘fair and lawful’ processing obligations you will need to communicate with staff on this point and seek their buy-in if possible to collect data regarding their vaccination status. As well as having relevant grounds for processing, the collection of such data should also be highlighted in internal privacy policies and employment handbooks.
You will need to consider the grounds for asking for proof of vaccination and also whether it is appropriate to ask for reasons for refusal. You should also take care about communicating an employee’s vaccination status to any other person – without the employee’s express informed consent this is unlikely to be appropriate. Steps should also be taken to ensure that insofar as is practical, it is not possible to work out the vaccination status of any employee from other information that is shared with staff or third parties.
Are there other arrangements you can put in place for those who are not vaccinated? The vaccine is not safe or recommended for all employees and other employees may have a legitimate reason for not wanting to have the vaccine (e.g. religious or other beliefs). If your risk assessment highlights the benefits of vaccination for employees, is it possible to move these employees to other roles or put in place additional protection to mitigate against the risks of the employee not having had the vaccine? The risk assessment is important here as this can be used to justify any different treatment of protected groups such as pregnant employees, those with allergies (who may then be afforded protection from disability discrimination under the Equality Act) or those with religious beliefs that are not compatible with taking the vaccine. You should also carefully consider those who have a philosophical objection to the vaccine itself and not dismiss such beliefs out of hand as they may have some protection under the Equality Act.
Can you dismiss an employee who is not vaccinated? If you have taken all of the above into account and cannot make other arrangements, it may be necessary to consider whether an employee should be dismissed. If considering dismissal, you should carefully assess how long the employee’s vaccination status is likely to remain relevant – we do not yet know if annual vaccines may be required or not and it may be appropriate to wait for a period of time to see if the risk assessment changes. Whether or not a dismissal is justified (from a discrimination and/or unfair dismissal perspective) is likely to be highly fact specific and may vary from employer to employer. Factors such as the number of employees who cannot be vaccinated and the overall effect on the business of unvaccinated employees may also be relevant.
Can you impose a different policy on new hires? All of the above factors will still be relevant considerations when looking at a policy for new hires. Any policy that is potentially discriminatory (e.g. on the grounds of disability or religion) will need to be justified, otherwise those who fail to secure roles can still bring claims. However, there may be greater scope to justify certain policies with new hires, compared to existing employees.
In summary, if you are thinking of implementing a vaccination policy for existing staff or new hires, you should carefully consider all of the issues and keep these under review.
Libby also commented to the Financial Times on these issues in this article.