A recent survey suggests that 23% of employers plan to require their staff to be vaccinated, and there is talk in the press of 'no jab, no job' work contracts. What exactly are you allowed to do when it comes to managing vaccination-related workplace issues and risks?

Can employers require all staff to be vaccinated?

Probably not. Although the government has the powers to prevent and control the spread of infectious diseases, it doesn't have the power to require people to undergo medical treatment. This includes vaccination.

The government's Green Book on immunisation states that consent from the individual is required before any medical treatment, including all vaccines.

The government appear to have no plans to change this, repeatedly emphasising that people won't be forced to have a vaccine if they don't want one.

All of this makes it difficult for you to insist on it automatically. So, too, does the statement from Acas that 'Employers should support staff in getting the coronavirus (COVID-19) vaccine, but they cannot force staff to be vaccinated'.

Can employers require certain staff to be vaccinated?

Possibly, but the position isn't clear. The Health and Safety at Work Act 1974 does require you to take all reasonably practicable steps to ensure the health, safety and welfare at work of all your employees. A similar duty exists under the general law. On its own, that's probably still not enough to justify mandatory vaccination. Still, it might be a relevant background in some cases.

That's because an employee has a duty under the general law to obey their employer's lawful and reasonable orders. Acas has suggested that you should only decide it's necessary for staff to be vaccinated 'if getting the vaccine is required for someone to do their job' (e.g. if staff travel to other countries for work). Others have suggested a more nuanced approach, where reasonableness is a question of degree. Relevant considerations may include the nature of the role, the circumstances of each employee, the risks to other staff or people they encounter, and the workplace's size/layout.

On this basis, it may be reasonable – for example – to require healthcare staff or teachers and support staff to be vaccinated. But it's less likely to be reasonable for staff who have limited contact with others and for whom other protective measures can be put in place.

A key question is likely to be whether vaccination provides greater protection than other measures. It's not yet known for sure that vaccination reduces or prevents transmission of COVID-19 (trials are ongoing). Suppose it's found that it doesn't. In that case, it's unlikely that you can successfully argue that compulsory vaccination is proportionate to keep others safe.

Unfortunately, there are no easy answers here. You'll need to get legal advice from one of our employment law specialists if you think that requiring vaccination may be justified. It will depend hugely on your circumstances.

Can employers put vaccination requirements into staff contracts?

You might want to change an employee's contract to add a compulsory vaccination requirement. However, this is potentially problematic. You'll need their agreement – if you make the change without it, you'll be in breach of contract, and the original terms of the contract will remain in place. The employee then has options:

  • They can waive the breach by continuing to work without complaint under the new terms.
  • They can work under the new terms under protest and claim for breach of contract. If the change imposed is substantial, you might be deemed to have dismissed the employee, meaning they could also claim for unfair dismissal.

If the breach of contract is fundamental, they can resign and claim for constructive dismissal.

It may be simpler to only insert the vaccination requirement into contracts for new staff. However, unless you're recruiting significant numbers of people, this is unlikely to result in any greater protection for your overall workforce. It potentially also opens you up to discrimination claims (more on this below).

In short, it's currently risky – don't try and make vaccinations a part of staff contracts without getting legal advice first.

Can employers take action against staff who refuse to be vaccinated?

Assuming you've legitimately introduced a compulsory vaccination policy or a contractual vaccination requirement, then, in theory, yes, you can. But it's not without risks.

You can't physically enforce a vaccination – that would be a criminal offence. There are potentially two actions you might consider:

  •  Refusing to allow the employee to come to work (i.e. a suspension on medical grounds)
  • Starting disciplinary proceedings.

An employee suspended on medical grounds is entitled to full pay for up to 26 weeks. If you start disciplinary proceedings, you could suspend them pending the outcome to ensure the safety of others. Still, they're entitled to full pay until the proceedings are concluded.

In both cases, you'll have to properly take into account the employee's circumstances. There are many reasons why they might reasonably refuse a vaccine: e.g. medical advice, religious or philosophical belief, pregnancy, disability, wanting to keep control over their medical choices or wanting to wait for more evidence of safety.

Some might even be advised not to have the vaccine due to a medical condition or may have severe trypanophobia (fear of needles). Both could mean they have a disability and be protected under the Equality Act 2010 if they refuse the vaccine. Note, that those with a history of anaphylaxis to food, an identified drug or vaccine, or an insect sting have been advised that they can still receive any COVID-19 vaccine if they're not known to be allergic to any of its components. All vaccination sites should have equipment for managing an anaphylactic reaction.

If you compel an employee to get a vaccine and they then suffer an adverse reaction, they could try and bring a personal injury claim against you.

More evidence is needed before pregnant women are routinely offered the vaccine. Women who avoid vaccination because they are planning a pregnancy may be able to claim sex discrimination if, as a result, you treat them less favourably or later dismiss them.

Ultimately, any policy or contractual requirement about vaccination that adversely affects people from a protected group (race, age, sex, disability and religion/belief being the most likely) will potentially be indirectly discriminatory. A dismissal resulting from the implementation of such a policy or requirement may well be unfair.

Pressuring employees to be vaccinated through threats of suspension or disciplinary action carries genuine and potentially significant legal and financial risks. It could also negatively affect your business reputation and staff morale.

A better approach is to encourage staff to be vaccinated – educate them on the benefits of vaccination by providing impartial, factual information to make an informed decision.

Can employers relax safety measures after vaccination?

The short answer is no. England's Deputy Chief Medical Officer, Professor Jonathan Van-Tam, has warned that people who have received their vaccination must still obey social-distancing rules. Businesses continue, therefore, to be required to risk-assess their workplaces and take steps to ensure that they are COVID-secure,

It's still too early to say whether widespread vaccination will eventually reduce the measures required to make a workplace COVID-secure.

It would be best if you were cautious about treating the vaccine as a mechanism to remove other measures. Instead, continue to follow government guidance and monitor it for changes.

What about data protection implications?

If you collect any information about whether employees have (or haven't) been vaccinated, then you must handle it as special category data in accordance with the Data Protection Act 2018. The ICO has recently added guidance on vaccinations to their 'Data protection and coronavirus information hub' to help you do this.

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