What are the workplace implications of the Covid-19 vaccine?

On 8 December 2020, Margaret Keenan, a 90-year-old grandmother became the first person in the UK to be vaccinated against Covid-19. After a difficult year, the news brought hope to many that the end of the pandemic may yet be in sight. The last-minute increase in Christmas restrictions and new national lockdown in January 2021 have again left many people struggling with the fallout of the pandemic. As the UK faces some of the deadliest weeks of the pandemic so far, the vaccination drive has intensified – with over 2 million vulnerable people having received the first dose so far. As the phased roll out of the vaccination gets underway, questions arise about the impact of the vaccine on employees, employers and employment rights in the UK.

Will the vaccine be compulsory in the UK? 

Under the law as it stands, the Government does not have the power to make vaccination compulsory across the UK.

The Public Health (Control of Diseases) Act 1984 gives the UK government powers to prevent, control or mitigate the spread of an infection or contamination. However, this Act also explicitly says that individual cannot be forced to undergo vaccination or immunisation. This prohibition has also been extended to Scotland and Northern Ireland by The Coronavirus Act 2020.

It is unlikely that the government will attempt to change the law. Boris Johnson told a news conference on 23 November 2020 that: “There will be no compulsory vaccination. That’s not the way we do things in this country”. This also reflects the stance in the updated government Green Book on Immunisation Against Infectious Diseases which says: “consent must be obtained before starting any treatment or physical investigation or before providing personal care for a patient. This includes the administration of all vaccines”.

If the government were to change its stance and attempt to make vaccination compulsory it is likely to face significant obstacles from the common law as well as human rights law. Vaccinations without consent would be prohibited by the criminal law relating to assault and battery. They are also likely to amount to an interference with Article 8 of the European Convention on Human Rights (ECHR) which protects the right to bodily autonomy and integrity. They may also constitute degrading treatment for the purposes of Article 3 ECHR.

Can employers force their employees to get vaccinated? 

There is no statutory right which would allow employers to compel their employees to take the Covid – 19 vaccine. 

Employers may attempt to rely on ordinary contractual principles to incorporate provisions requiring an employee to get vaccinated as a condition of employment. However, such clauses are likely to face the same criminal law, Article 8 ECHR and Article 3 ECHR hurdles set out above. Individual consent will be required before the vaccine can be lawfully administered in the UK.

Is there a duty on employers to provide the vaccine? 

Under Section 2 of the Health and Safety at Work Act 1974, employers must take all reasonably practicable steps to reduce workplace health risks.

At present the vaccine is being administered exclusively by the NHS and cannot be paid for privately. Therefore, employers are not responsible for providing the vaccine to their employees.

If at some point in the future the vaccine were to become privately available covering the costs of the vaccine could fall within the scope of an employer’s duties under the Health and Safety at Work Act 1974. It may also fall within the ambit of the implied term of mutual trust and confidence and the implied term to take all reasonably practicable steps to provide a safe system of work. Given the dangers posed by a Covid-19 infection (especially the disproportionate severity for BAME individuals) it may be hard for an employer to maintain that it was not reasonably practicable for them to cover the costs of Covid-19 vaccination for employees.

In practice, for the foreseeable future, most employers are likely to strongly encourage all staff to get vaccinated against Covid-19. This is the approach that is routinely taken by employers in relation to the flu vaccine. This is also likely to be received better than any attempt to enforce compulsory vaccination on a workforce at the early stages of a vaccination roll out - when people may be more wary of the risks associated with vaccination.

Can employers dismiss an employee who refuses to take the vaccine? 

In some circumstances an employee who refuses to take the vaccine may be unprotected by the provisions against unfair dismissal in Section 98 of the Employment Rights Act 1996 (ERA).  

An instruction to an employee to take the vaccine could amount to a ‘reasonable management instruction’. This will depend on the nature of the person’s work and responsibilities. For example, if the individual works in a care home, school or hospital then it is highly likely that the instruction to take the vaccine would be a reasonable management instruction. If on the other hand, the person works in a job which allows them to continue to work from home then an instruction to take the vaccine may not be a reasonable management instruction.

Dismissal for failure to follow a reasonable management instruction can amount to a potentially fair reason for dismissal. This is on the basis that it is a dismissal for ‘some other substantial reason’ (SOSR reason) which is a potentially fair reason for dismissal according to Section 98 (1) (b) ERA.

Even if the employer is able to establish that the employee was dismissed for refusing to take the vaccine and that this amounted to a potentially fair reason for dismissal, the tribunal would then still have to consider the fairness of the dismissal in all the circumstances. This is a highly fact sensitive exercise which involves looking at both the substantive and procedural fairness of the dismissal.

As part of this examination some of the specific factors that the tribunal may consider in this context (in addition to those which are normally relevant in an unfair dismissal case) include:

• Whether an appropriate disciplinary process was followed where the employee was allowed to explain their reasons for refusing the vaccine.
• Whether appropriate consideration and weight was given to any explanation provided by the employee for refusing to take the vaccine.
• Whether it was possible for the employee to carry out alternative work or be reallocated so that they were not required to take the vaccine.
• The risk to any individuals that the employee would work or interact with as part of their role.
• Whether the vaccine was an attempt by the employer to obfuscate from their responsibilities i.e. if the employer refused to make the workplace Covid secure or enforce social distancing by insisting employees get vaccinated.

Due to the fact sensitive nature of this exercise employees and employers should take legal advice if they find themselves faced with a potential dismissal in the context of a refusal to take the vaccine.

What are the discrimination issues around vaccination? 

Employers are bound by the provisions of the Equality Act 2010 (“EA”) and cannot, therefore, engage in any of the unlawful acts of discrimination prescribed by the EA. Discrimination can be direct or indirect. Direct discrimination occurs where a person (A) treats another (B) less favourably than A treats or would treat another because of a protected characteristic (s. 13 EA). Indirect discrimination occurs where A applies to B a provision, criterion or practice (“PCP”) which is discriminatory in relation to a relevant protected characteristic of B’s. A PCP is discriminatory in relation to a relevant protected characteristic if it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, and where that PCP puts or would put B at that disadvantage (s. 19 EA).

Employers are at risk of discriminating if they choose to implement mandatory or voluntary vaccination policies in the workplace once vaccines become widely available. It is likely that Tribunals would accept that any such policies amount to PCPs. The risk of discrimination arises where employees object to vaccination, most likely on the basis of disability or religion.

Employees may object to vaccination on the basis that they are allergic to components of the vaccine, or on the basis of mental health concerns (e.g. due to fear of needles or other phobias). Where employees object to vaccination on this basis, insisting on compulsory vaccination is very likely to be found to amount to indirect disability discrimination. A “greyer” area is where employers seek to exclude from the workplace employees who object to vaccination on the basis of disability. It is possible that this, too, would amount to indirect disability discrimination. Where employees object to being excluded from the workplace, employers should seek to accommodate in the workplace, as far as reasonable, disabled employees who justifiably object to vaccination and to working from home.

Pregnant women may also object to vaccination, given the risks associated with vaccination while pregnant. As with disabled employees, compulsory vaccination PCPs or exclusion from workplace PCPs may amount to discrimination against pregnant women.

Similarly, employees may object to vaccination on the basis of religion or belief. In such circumstances too, enforcing compulsory vaccination or workplace exclusions are likely to amount to indirect discrimination on the basis of religion or belief. To what extent Tribunals will accept that “anti-vax” sentiment amounts to a “belief” protected under the EA is, however questionable, and is likely to depend on the circumstances of the case.

However, employers can rely on s. 19(2)(b) EA, which provides a defence to indirect discrimination claims, where the employer can show that the PCP in question is a proportionate means of achieving a legitimate aim. For the reasons noted above, it is unlikely that compulsory vaccination will be held to be proportionate. However, PCPs seeking to exclude employees who refuse vaccination may be deemed to be proportionate where no less intrusive measure (e.g. accommodations in the workplace) is available to the employer.

Employers are advised to seek to accommodate, as far as reasonable, employees who object to vaccination for justifiable reasons to avoid facing claims of indirect discrimination.

Furthermore, employers should be wary of treating employees who reasonably object to vaccination less favourably because of a protected characteristic. For instance, employers should be aware of the risk of selecting employees for redundancy on the basis of such refusal, as this may lead to claims of direct discrimination.

What are the data protection issues?  

As the COVID vaccine is rolled out, employers may wish or need to collect information about vaccination of its workplace as employees begin to return to the office. The ICO has issued guidance in respect of collecting information about employee testing. The ICO’s key message is that “It’s about being proportionate - if something feels excessive from the public’s point of view, then it probably is.” Employers are pointed to the six data protection principles for organisations, which set out the key principles that organisations need to consider when using personal information.

The following guidance was provided to employers who wished to test employees for COVID-19 and to collect testing data:

To help you decide whether measures such as collecting employee health information or asking staff to be tested for COVID-19 are necessary, you should consider the specific circumstances of your organisation and workplace. These include:

• the type of work you do;
• the type of premises you have; and
• whether working from home is possible.

You should consider whether specific regulations or health and safety requirements apply to your organisation or staff. You should also take into account whether you have a specific duty of care to employees. This wider legal framework will help in informing how you apply data protection law.

Keep in mind that, due to its sensitivity, health data is classed as ‘special category data’ and has extra protections under data protection law.

You should be clear about what you are trying to achieve and whether personal information is necessary for that purpose. Data protection law provides you with flexibility if you can demonstrate that you need to process personal information for a specific purpose.

Once you’ve considered your circumstances, ask yourself these questions:

• Do you really need the information?
• Will these steps actually help you provide a safe environment?
• Could you achieve the same result without collecting personal  information, in particular, without health information?

If you can show that your approach is reasonable, fair and proportionate, then data protection is very unlikely to be a barrier. If staff proactively ask you to collect information in relation to COVID-19 or to undertake testing, you could use this to demonstrate that your measures are proportionate for those employees.

If you decide that it is necessary to test staff, you need to make sure you manage the information appropriately.

When considering if your approach can be less intrusive, the following questions may be useful:

• Can you confine the collection of health data to the highest risk roles?
• Can you limit access to health data, so that only medically qualified staff, those working under specific confidentiality agreements or those in appropriate positions of responsibility see it?
• Do you have reasonable alternative measures which don’t rely on personal information, such as strict social distancing or working from home?

The same questions are likely to be relevant to determining whether it is lawful, under data protection laws, to collect information about vaccinations amongst the workforce. In all circumstances, the key question for employers is likely to be whether it is necessary and proportionate to collect vaccination data, or whether less intrusive measures are likely to be equally effective.

Conclusion 

The treatment of vaccination by employers is likely to raise novel questions for Employment Tribunals. Such questions are likely to be resolved by drawing on established principles of law, as discussed. Although precise Tribunal outcomes may be hard to predict in these largely untested waters, employers who act reasonably and proportionately when considering vaccination within the workforce are likely to be able to defend their choices before Tribunals.

This article is intended to provide an overview of the relevant law. It is not a replacement for specifically tailored legal advice. 

Margherita Cornaglia and Preetika Mathur are Barristers in the Employment, Discrimination and Equality Law Team at Doughty Street Chambers.