As a result, save in respect of care home workers where the Government has legislated to require the majority of staff to be double vaccinated save in limited circumstances, the idea of making the Covid-19 vaccine a condition of employment is not without its risks.
Other than care home workers, there is currently no legal provision that permits an employer to implement compulsory vaccines. However, some businesses have considered this option as a way of protecting workers and employees.
Those organisations that may still be toying with the idea should tread carefully. Compulsory vaccines are a legal minefield that must be navigated carefully to avoid breaching legal obligations to workers and employees.
Health and safety at work
It is the employer’s responsibility to ensure that workplace risks are mitigated. Therefore, employers should take all reasonably practicable steps to keep employees safe as outlined under section 2 of the Health and Safety at Work Act 1974 (HSWA 1974). According to section 7 of this act, an employee has a duty to co-operate as necessary with the employer to enable it to comply with any statutory requirements including reducing workplace risks.
While every employee wants to feel safe in the workplace, this requirement is unlikely to extend to employees being legally required to be vaccinated against Covid-19 in all business sectors.
The meaning of “reasonableness” is likely to depend on the business sector of the employer and the services it provides. Of course, rules and guidelines will vary between businesses, and those that interact with customers face-to-face may need to introduce stricter measures to keep people safe. For example, employees working in a retail environment may come into close contact with customers, so the idea of a compulsory vaccine may alleviate fears of catching or spreading Covid-19. Therefore, the request of an employer operating in the retail sector for its employees to take the vaccination could be argued to be a ‘reasonable management request’, as refusing to take the vaccination could pose severe risk to fellow employees and customers. Dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fairly, either on grounds of conduct or for some other substantial reason. This argument is likely to have less weight for office-based workers who do not have regular customer contact.
Since the position is less clear in other sectors, employers must exercise caution before deciding to dismiss. Employers should consider all available options before taking drastic action, as it may be possible to mitigate risks by moving certain employees to other areas of the business.
Regardless of sector, all organisations should carefully consider the circumstances of the individual employee when pursuing dismissal, as they risk being accused of discrimination on the grounds of religion and belief, disability or pregnancy, and breach of data protection legislation.
Religion and belief
It is unlikely that an ‘anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. Not all vaccines in production have released their list of ingredients, however. So it is possible that gelatine may have been used in some vaccines, or in its production process. Hence employees with certain religious beliefs or vegans may have religious or philosophical grounds for refusing to take the vaccination.
Disability
If an employee has been advised by their doctor not to take the vaccine on medical grounds, an employer’s requirement to take the vaccine may amount to disability discrimination. Even if the employee is not disabled, a tribunal may find that the request to the employee to go against medical advice is unreasonable in any event.
An employee’s fear of needles (trypanophobia) may also amount to a disability. Therefore an employer would need to consider whether it could provide alternative working arrangements for that employee – for example, working from home on a permanent basis.
Pregnancy and maternity
Government advice has recently changed in relation to vaccines for pregnant women. The Joint Committee on Vaccination and Immunisation (JCVI) has advised that pregnant women should be offered COVID-19 vaccines at the same time as people of the same age or risk group.
Whilst many pregnant women may be willing to be vaccinated, some may be concerned about the potential effects on their unborn baby and refuse to have the vaccine. In these circumstances, the employer will need to carefully consider the circumstances. Where the employee is refusing to be vaccinated due to being pregnant, dismissal may lead to claims for sex discrimination, and /or pregnancy/maternity discrimination. Employers should consider all available alternatives and whether other measures (for example, regular testing, working from home) may be sufficient in the circumstances.
Data protection
Personal data collected in connection with an employee’s vaccination records will be sensitive personal data, or special category personal data, and will need to be processed in accordance with the General Data Protection Regulation. But is it legal to collect such data?
The answer to this question depends on whether the employer, as a data controller, has a legitimate interest or legal obligation to collect vaccine information due to the nature of their business.
Employers wishing to obtain vaccination evidence should carry out a data impact assessment which considers carefully the reason for collecting the data, where the data will be held, the security measures in place and who has access to the data.
Unless the employer can show a substantial health and safety based reason for collecting the data, which is sufficient to show that the employer has a legal obligation or a legitimate interest in collecting the data, the employer is unlikely to have a lawful basis for collecting the data.
In summary
The idea of using compulsory vaccines to protect employees and customers seems like a reasonable request. In reality however, there are many potential complications and legal issues that come with it. Before introducing a compulsory vaccination policy, employers should carefully consider what impact it will have on their workforce, so they don’t land themselves in trouble later down the line.
Employers should also keep up to date with the latest government public health guidance and start to develop their own Covid-19 policies to take into account the implications of the vaccine in the workplace.
