As the law stands it is not possible for an employer to require employees to take a Covid-19 vaccine, nor, save for in very limited circumstances, can employers make being vaccinated a condition of employment. For most UK employers ensuring their workforces take up the vaccine when available can best be achieved through advocacy and effective communication.
Health and safety risk assessments in respect of the workplace now need to be reviewed in light of the new strain of the virus as well as the vaccine programme, and employers may wish to consider individual risk assessments for vulnerable employees. Indeed we are approaching a scenario where individual risk should be a key factor, particularly for the most vulnerable groups.
Effective communication and engagement with staff in relation to health and safety issues remain as important as ever and is key now that the vaccination programme is being rolled out.
Employers should be starting to consider adopting a vaccination policy over the course of the next couple of months.
What is the UK Government saying about the vaccine?
In England and Wales the priority list for receiving the vaccine is set by the Joint Committee on Vaccination and Immunisation (JCVI). The JCVI has no statutory basis for advising in Scotland and Northern Ireland, although Scotland is following the advice of JCVI on the vaccine prioritisation. The JCVI currently recommends vaccines going to the elderly who are most at risk from Covid-19 of serious disease and older care home residents, followed by NHS front-line staff, care home workers and then others until everyone over 60 and younger people with underlying health conditions have been offered a vaccination. The timetable for further vaccinations is then currently proposed to be via age groups from the oldest to the youngest. The practical reality is that the majority of workforces are unlikely to start accessing a vaccine in the UK until the late Spring/early Summer at the earliest. This may change for some key workers. In the US key workers have been deemed to be a priority and that definition looks like it will be construed quite widely. In the UK we have seen recently calls for police and teachers to be prioritised for a vaccine.
Whilst s.45 of the Public Health (Control of Disease) Act 1984 permits Government to make regulations to prevent or contain the spread of infectious diseases s.45E makes it clear that such regulations cannot include a provision "requiring a person to undergo medical treatment" and "medical treatment" is defined to include "vaccination and other prophylactic treatment". The Government's Green Book on immunisation provides that consent from the individual must be obtained prior to the start of any medical treatment including the administration of all vaccines. Similarly, the NHS Constitution includes a non-enforceable request to "please participate in important public health programmes such as vaccination". Consent and voluntary participation seem to be the key here.
In November 2020, Matt Hancock, the Health Secretary, reiterated that the Government was not proposing to make any vaccination for Covid-19 mandatory (and there is currently no legal basis upon which to do so).
Given that the Government has been clear that it cannot mandate people to take a vaccine, it follows that an employer could not lawfully require employees to take one.
Health & Safety
Does the duty imposed upon UK employers to provide a safe working environment under the Health and Safety at Work Act 1974 require that employers may be obliged to make the vaccine available to their employees? In short, no.
Covid-19 risk assessments remain at the heart of controlling the risk of transmission in any workplace setting. These should now arguably include consideration of the vaccine programme roll-out and also whether previously adequate control measures need to be strengthened due to the greater transmissibility of the new strain. We expect the Government to refresh its own sector guidance notes on Covid-Safe workplaces in the coming weeks (or even days) given the current rate of spread of the virus. We may see a return to stricter social distancing requirements (as recently advocated by SAGE) the usage of face coverings in all indoor workplaces and increased ventilation requirements.
There may need to be separate risk assessments for those who choose not to be vaccinated. Encouragement should be given to staff, similar to those relating to downloading of the NHS Test and Trace App. Again the key will be to consult and engage with staff as to occupational health risks and ways to manage them.
Can employers require employees to take the vaccine as a condition of employment?
Pimlico Plumbers have announced an intention to do this but this is an area fraught with difficulty and employers should be very wary of following Pimlico's lead. Risks/issues include infringement of human rights, discrimination (religion and belief, disability, pregnancy) and data protection.
Circumstances where it might be possible for employers to require employees to be vaccinated (or to impose disciplinary sanction for refusal) are, for example, where they are required to work in very small spaces which cannot be made Covid-secure or where the employee cannot perform their role without having been vaccinated. An example might be those employees who are required to travel abroad as part of their roles and where jurisdictions they travel to require vaccination Another example, in line with the current priority of vaccine receivers, is in the social care sector where it may well be a reasonable and lawful instruction to employees to have the vaccine as a condition of employment as refusal to do so would put vulnerable people at risk.
It is more likely, however, that an increasing number of employers will encourage, rather than attempt to coerce, employees to take the vaccine especially in the case of high hazardous workplaces such as those where there has been a high incidence of transmission or elevated Covid-19 death rates including, for example food manufacturing (particularly frozen/chilled production), security guards, public service (bus/coach/taxi) vehicle drivers, construction workers, cleaners, and those working in essential retail which has stayed open throughout the pandemic.
ACAS has expressed the view that employers are not able to require employees to take the vaccine and should listen to concerns if employees refuse to take it. If the reasons for refusing the vaccine are unreasonable, then employers may be able to take disciplinary action. The relevant factors are stated to be:
- Whether there is a vaccine policy in place
- Whether the vaccine is necessary to do their job
- Whether an employee's reason for not wanting the vaccine might be protected under the Equality Act 2010
Human rights concerns are also likely to be in issue, particularly Article 8 (Right to respect for private and family life) of the Human Rights Act 1998.
Religion or belief discrimination
Can the so called 'anti-vaxxer' movement be a philosophical belief under the Equality Act such as to invite protection? Employees relying on their religion to argue that not taking a vaccine is part of their religious belief ought to be protected. Others may argue that they cannot take a vaccine due to their 'veganism' belief. Given that veganism has already held to be a protected belief (albeit in a first instance decision), this may be protected too. It is highly unlikely, however, that a mere anti-vax belief itself is likely to be protected.
Severe cases of fear of needles (trypanophobia) may constitute a disability as its consequences may include dizziness, fainting, palpitations and 'emotional or physical violence'. Equally those who have been advised not to have the vaccine due to a medical condition may argue that their disability prevents them from accepting a vaccination.
Pregnancy and maternity discrimination
Public Health England advice states that "women should be advised not to attend for vaccination if they are, or may be pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine". Any requirement or encouragement to take a vaccine should have a carve-out for pregnant women.
What about data protection?
Personal data which may be collected in connection with employee vaccination constitute special category personal data and will need to be processed in line with GDPR and DPA 2018.
In terms of legal basis for the collection of such data, a data protection impact assessment (DPIA) to assess if the processing is “necessary for the purposes of carrying out the obligations and exercising specific rights of the controller or of the data subject in the field of employment” and “providing for appropriate safeguards for the fundamental rights and the interests of the data subject”.
The DPIA will need to establish the appropriate lawful basis for the processing of such data, if justified, such as legitimate interest and/or legal obligation, bearing in mind the specific circumstances, nature of the employer's business and sector.
Should we have a vaccine policy and, if so, what should it include?
Although it may seem premature given where we are in the progress of the roll-out of the vaccine, we advise employers to start thinking ahead. Any vaccine policy must be closely aligned with the employer's health and safety risk assessment (see above on the importance of making sure that H&S risk assessment is updated and monitored) and, depending on the nature of the organisation, employers may wish to consult with employees or their representatives in drawing up a vaccine policy.
We recommend employers deal with the following elements in a policy:
- Background and the Government's position on the vaccine (the Government's stance and health and safety guidance may change as knowledge and circumstances develop so it will be important to keep reviewing this)
- Health benefits of having the vaccine
- Potential health risks (with links to relevant Government and health authorities' websites)
- Vaccine training
- Human rights and discrimination concerns
- Covid-Secure measures which employees must adhere to in any event such as testing, mask wearing, social distancing, hand-washing and self-isolation where required (and that failure to comply may lead to disciplinary measures)
- That the policy will be maintained and reviewed frequently in line with government guidance and policy
It will be important to make sure that the vaccine policy is consistent with other temporary or permanent policies the employer has put in place in light of the Covid-19 pandemic such as a home-working policy, sickness policy and flexible working policy.
Partner, Head of Employment & Immigration Group
Partner, Health & Safety United KingdomView profile
Partner, Health & Safety
Dr. Nathalie Moreno
Partner, Commercial and Data Protection