We recently conducted a LinkedIn Poll, in which we asked what are most important safety measures people would like to see in the workplace following employees’ eventual return to the office. The options and results of the voting were:
- Social distancing & cleansing – 13%
- Compulsory vaccinations – 25%
- Compulsory testing – 4%
- Continuing flexible working – 57%
Whilst the results indicate that people strongly feel flexible working is the most powerful tool in continuing to combat the spread of Covid-19, it was interesting to note that the second highest response was for compulsory vaccinations (discussed below).
In this edition of Law in the Spotlight, Rennie Schafer, Chief Executive Officer of the Self-Storage Association UK, talks to Aaron Heslop about the employment law issues surrounding Covid-19 vaccinations and testing in the workplace.
Is having the vaccine a legal requirement?
Although the headlines have been dominated by some employers’ desire to impose ‘no jab no job’ policies, there is no legal requirement in the UK for an individual to have a vaccination. In fact, quite the opposite is true. The Public Health (Control of Disease) Act 1984 states that no individual can be forced to undergo a medical procedure, which would include vaccinations.
What does Health and Safety Law say about compulsory vaccinations?
Employers must have regard to the Health and Safety at Work etc. Act 1974. The Act sets out a general duty for employers to safeguard the welfare of their employees. There are also duties on employees to co-operate with their employer to enable it to meet its duties, as well as a duty to take care of their own health.
However, neither the Act nor the guidance on workplace safety published by the Health and Safety Executive (HSE) say anything about compulsory vaccinations. The focus in the HSE guidance is very much on making workplaces ‘Covid-Secure’ in other ways, such as social distancing, practising good hygiene etc.
What are the employment law implications…?
…when taking on new employees?
It is potentially easier for employers to insist that, as a condition of employment, new recruits have had the vaccine (as opposed to requiring existing staff to have it). However, it is at present difficult to provide proof and there are also age discrimination issues by virtue of the fact not everyone is eligible yet to be vaccinated.
…if an employer wishes to stop unvaccinated employees from coming to work?
Although potentially possible, an employer would need a very strong justification for doing so e.g. the employees work with vulnerable people (such as in the care sector) making it more reasonable for an employer to insist on vaccination.
Given the backdrop of where the law stands and the guidance from the HSE, which says workplaces should be made Covid-Secure regardless of vaccination status, exclusion from the workplace is likely to be a detriment to an employee. This would leave the door open to a discrimination claim as well as constructive unfair dismissal claims, so exclusion should be considered as a last resort.
…of issuing a disciplinary sanction to an employee who refuses to have the vaccine?
An employer could try to argue that it is a reasonable instruction to an employee on health and safety grounds for an employee to be compelled to have the vaccine. However, that kind of blanket justification is likely to not be sufficient, particularly if the refusal is based on grounds that would be protected under discrimination law.
Whether an instruction is reasonable in this context will depend on a number of factors, such as, do employees work with vulnerable people or have vulnerable colleagues.
…of the Human Rights Act?
Notwithstanding Brexit, the UK remains a signatory to the European Convention on Human Rights and the Human Rights Act 1998 remains in force. This means an Employment Tribunal would be obliged to consider protections given to individuals under human rights law, such as the right to respect for one’s privacy and family life or the right to freedom of thought.
…of the Data Protection legislation?
Employers will need to bear in mind that vaccination status would be classed as sensitive information, meaning that an employer should have a clear and compelling reason for requesting the information and for processing it. An employer should not simply collect the information on a ‘just in case’ basis. Therefore, if an employer asks its employees whether they have been vaccinated or not, the employees could quite feasibly not disclose the information and it would be potentially difficult for an employer to force the relevant employees to provide that information. The Information Commissioner has produced useful guidance on this area.
…of discrimination law e.g. the so called ‘anti-vaxxers’?
Discrimination law via the Equality Act 2010 (EA 2010) provides a number of protected characteristics that could be the basis of a legitimate reason for refusing to have the vaccine. These include pregnancy and medical reasons.
Also included is the protection of ‘some other belief’, which includes philosophical beliefs. The EA 2010 does not define what would qualify as a philosophical belief, but an anti-vaccine belief would potentially qualify.
In order to qualify, the belief must be genuinely held and must not be simply an opinion or viewpoint based on the present state of information available. The belief must also be worthy of respect in a democratic society and not be a belief that would cause harm to others.
…of an employer insisting that employees regularly take Covid-19 tests?
If it wishes to do so, an employer is potentially on safer and more reasonable grounds if it requested its employees undergo tests. This is because testing generally is less invasive than being vaccinated and it would be more likely to be deemed to be a reasonable instruction. There is also a high availability of lateral flow tests and employers can currently receive these for free from the government.
Why might an employer want to consider implementing a ‘no jab no job’ or ‘no test no job’ policy?
There are a variety of reasons why certain employers may consider compulsory vaccinations or testing. For example, the employees may have vulnerable colleagues who say they cannot work with unvaccinated colleagues, the business may work with vulnerable people or perhaps the employer sees a marketing advantage to being able to say its workforce is fully vaccinated.
If you have questions relating to this topic, or require advice and assistance on this or any other employee or workplace related matter, please contact Aaron Heslop.