Key latest developments

• The government met its target to offer all adults a first dose of a Covid-19 vaccine by 19 July and is on track to offer all adults a second dose by mid-September. The remaining legal restrictions on social distancing in England were lifted on 19 July after all those aged 40 and over and the clinically extremely vulnerable received their second dose.

• The NHS Covid pass is now available to allow individuals to evidence their Covid status. The government has said that “essential settings” should not be requiring employees to prove their status, but that currently other businesses can use the NHS Covid pass at their own discretion subject to complying with their legal obligations. 

• From the end of September, full vaccination will become mandatory for entry to nightclubs and other venues which welcome large crowds. This allows enough time for everyone under the age of 18 to be fully vaccinated (and receive maximum protection after two weeks).

• As of 16 August, fully vaccinated individuals will no longer need to self-isolate following close contact with someone who has since tested positive for Covid. Instead, they only will be encouraged to take a PCR test.

• The government’s latest guidance on working safely during coronavirus does not provide employers with any advice or guidance on employee vaccination status.

Options short of mandating vaccination

Can we strongly encourage employees to accept vaccination?

Yes.

Across all settings, employers are obliged under the Health and Safety at Work Act 1974 to take reasonable steps to reduce any workplace risks. Encouraging uptake of the vaccination among employees to protect themselves and everyone else at the workplace is one way to reduce the risks.

Public Health England has issued guidance for employers explaining why employers should encourage vaccination and offering some guidance on how to do so.

Can we ask employees to share details about their vaccination status?

Yes, potentially, but you would be collecting special category health data so there are data protection issues to consider.

The Information Commissioner’s Office (ICO) has published advice to organisations who are collecting vaccination status data confirming that collection of this data must be necessary and relevant for a specific purpose. However, it confirms that if there is a good reason for collecting the information, there is a lawful basis to process the data.

Employers may be aware that the data protection regulator in Ireland has taken a contrasting approach, advising that there is no legal basis for collecting vaccination data under the GDPR. The ICO, however, has not changed its guidance in the light of the Irish view and it therefore remains open for UK employers to justify asking employees to share details of their vaccination status. The lifting of social distancing restrictions in England from 19 July arguably provides employers in England with a stronger case for collecting vaccination data when compared to the position in Ireland.

If you want to collect information about vaccination status you will nonetheless need a legal basis for doing so. The safest legal bases will be compliance with your legal obligations and “substantial public interest”. This means that preventing the spread of the virus and complying with your duty of care to employees need to be at the root of your justification rather than, for example, customer or staff preference or boosting confidence.

Asking employees to tell you about their vaccination status is less risky than insisting that they do so, because individuals who are happy to share the information are less likely to make a data protection complaint and the ICO would be more likely to regard your policy as proportionate if there is no mandatory element to it. It may therefore be sensible to start by asking if employees will volunteer this information before you move to insisting upon it.

When collecting data about vaccination status, you need to make sure that you comply with general data protection obligations (see “How do we comply with data protection law when handling vaccination details” below).

Can we reopen the office to vaccinated employees only?

Potentially, yes.

From 19 July, the official guidance that employees should work from home if they can has been lifted. The COVID-19 Response – Summer 2021 says that employers can start to plan a return to workplaces. The latest government guidance for workplaces – Working safely during coronavirus (COVID-19): guidance from Step 4 – confirms that employers can start to plan a return to workplaces, but during this period of high prevalence the government expects and recommends a gradual return over the summer.

Many employers may wish to look to reopen offices gradually, initially only to those who are fully vaccinated.

A “double dose” policy of requiring individuals to remain working from home and not return to the office until they have received both doses of the vaccine would indirectly discriminate against younger staff, but could potentially be justified depending on your risk assessment. All adults should have been offered the opportunity to have received two doses by the Autumn, so the discriminatory impact will be for a limited time, making it easier to justify as proportionate. You could consider making case by case exemptions for employees who are struggling to work effectively from home.

Another option would be to ask employees not to return unless they are either fully vaccinated or are willing to take regular lateral flow tests. This potentially still disadvantages younger employees who have not had a chance of receiving a second dose and so would have to undergo regular testing. It is more proportionate, however, than not allowing them to return at all and, as such, it further reduces the risk of discrimination claims.

If adopting any policy on vaccination, you would need to consider making exceptions for employees who cannot accept the vaccine due to medical or belief reasons (see “Objections to vaccinations” below).

Can we insist that all fully vaccinated employees must come back to the office?

Potentially, yes, although you will need to be careful to ensure that the workplace is safe. You may need to take particular care in relation to some groups of employees and this may prompt employees who want to remain working from home to make formal flexible working requests.

With effect from 19 July, the government is no longer instructing people to work from home if they can, so you are in a stronger position to require employees to come back. However, the government expects and recommends a gradual return over the summer. You still have a duty of care towards your staff and employees also the right to refuse to attend work in some circumstances where they reasonably believe themselves to be facing serious and imminent danger. This means that you need to ensure that you are implementing safety measures before requiring that employees return to the office, even if fully vaccinated.

You may also need to take care with certain groups. For example, vulnerable employees may have a disability and continuing to work from home could be a reasonable adjustment for them whilst cases are rising. 

Can we ask employees to demonstrate their Covid status using the NHS Covid pass?

The NHS Covid pass is available to individuals aged over 18 who are fully vaccinated, have tested negative in the previous 48 hours (using either a PCR test or a lateral flow test) or can be taken to have natural immunity because they had a positive PCR test in the previous 6 months. Individuals who are exempt from vaccination or testing may be asked to self-declare their condition.

There is limited guidance regarding the use of the NHS Covid pass although some employers could potentially use the NHS Covid pass as an alternative to vaccination-based measures. Such an approach would not be without discrimination risks, but there would be fewer discrimination risks than with a compulsory vaccination programme because the alternatives of testing or proof of natural immunity would be available to employees who cannot accept the vaccine due to medical or belief reasons or who are too young to have received both doses. 

Depending on how it is used and whether any records are created, use of the NHS Covid pass could still involve collecting special category health data so there may be data protection issues to consider (see “How do we comply with data protection law when handling details of vaccination status?” below). The Informational Commissioner’s Office has also released new guidance explaining that a visual check of a Covid pass, without creating any records, would not count as processing data, so this may be one option for employers.

Should we have a vaccination policy?

Yes, if you are offering incentives for employees to take up the vaccine (see below) or (unusually) mandating it. You would then use the policy to explain and communicate your approach, along with the terms of any incentives offered. For the majority of employers, a vaccination policy will not be so important, but you may nonetheless find it helpful to explain the organisation’s stance on vaccination and your objective that as many employees are vaccinated as possible.

A vaccination policy may also help with handling workplace disputes regarding vaccination. You could consider requesting employees not to ask each other about their vaccination status, with a failure to comply being treated as a disciplinary matter. Similarly, employees who are spreading untrue vaccination myths could also face a disciplinary process outlined in the policy.

Can we offer incentives for employees to accept vaccination?

Potentially, yes. Offering incentives to encourage vaccine take-up is a commonly discussed approach in the United States, but it remains to be seen if it becomes common practice in the UK where general take-up of the vaccine is currently high and incentives may not be needed.

Incentives could be vouchers, cash or simply allowing an employee paid time off to attend their vaccination appointment (see further below). 

If there is low take-up in a workplace, we recommend that employers first try promoting the benefits of vaccination (for both employees and wider population) before turning to incentives. If uptake remains low, offering incentives is a less risky approach than mandating vaccination, but the concept is not properly tested under UK law and would still involve a degree of risk.

Employers opting for incentives would need to consider their approach to employees with protected characteristics (e.g. disability or belief) who cannot receive the vaccination. It may be possible to justify offering incentives only to employees who have been vaccinated as a proportionate means of meeting legitimate health and safety aims.

Can we pay for employees to receive the covid-19 vaccination privately?

This is not currently an option as the vaccine is not commercially available and it appears unlikely it will become available to purchase for some time.

Employers requiring mandatory vaccination would be required to fund the vaccination for employees once available. There is some suggestion that a Covid-19 vaccination may be required annually, like the flu vaccination. In this case, employers should consider budgeting on the basis that vaccination will be an ongoing annual cost.

This would not be a taxable benefit if the cost does not exceed £50 and, to date, none of the widely used vaccinations cross this threshold. It is possible that, if the cost exceeds this, the government will provide for an exemption. 

How do we comply with data protection law when handling details of vaccination status?

Before processing large volumes of data regarding vaccination status, all employers would need to carry out a data protection impact assessment (DPIA) as this would be classed as special category data. The DPIA would need to consider why such data is needed and whether you have a sufficient legal basis for collecting it., The safest legal reasons will be compliance with your legal obligations and “substantial public interest”. The ICO warn that keeping vaccination status data for monitoring purposes only would be more difficult to justify. Equally, keeping vaccination status data for customer preference reasons will be harder to justify.

Employers should only collect the limited information required and hold it for no longer than necessary. Employees should be told why the information is needed, how it will be stored, how long it will be retained and who will be able to access it.

Mandating vaccination

Can we make it mandatory for existing employees to receive the Covid-19 vaccination?

Mandating vaccination for employees has never been tested in UK law. It may be possible for some employers to require the vaccine for all their existing employees. This is likely to be a minority of cases at the moment, but the picture may change in future.

The key legal problems with mandating the vaccine are the risks associated with dismissing employees who refuse and have over two years’ service, and the potential for discrimination claims from employees with protected characteristics.

The government has announced that vaccination will be compulsory for all English care homes regulated by the Care Quality Commission. This will be enshrined in legislation, meaning that care home employers will be able to rely on a legislative basis for dismissing employees who refuse the vaccine. Other employers proposing mandatory vaccination will not be in the same position and will therefore need to consider:

• Whether they have a fair reason to dismiss employees who refuse vaccination but have more than two years’ service:

• If an employer could show that having a vaccine is the most reasonably practicable way of mitigating the risk of Covid-19, having carried out a risk assessment, it could in theory mandate the vaccination as a health and safety requirement, to protect both the employee themselves and others around them. Employees who refuse the vaccine could potentially then be dismissed for a health and safety breach. This is most likely to apply in healthcare or other settings where Covid-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR).

• Vaccines may also be needed for entry to some overseas locations. If the employee’s role involves travel to those locations, then the vaccine is likely to be a necessary job requirement and the employer is likely to have a fair reason for dismissing any such employee who refuses the vaccine.

• Even if the vaccine cannot be said to be a travel or health and safety necessity in the particular workplace, some employers may also be able to establish that having a compulsory vaccination policy is nonetheless reasonable in the circumstances of their business or for certain employees

• Although customer confidence could be improved if all staff are vaccinated, it’s unclear if this alone would be enough to establish fair dismissals. Employers may, however, be able to rely on wider reasons about the role expected to be played by the vaccine in protecting against infection and transmission and achieving herd immunity. This is currently an untested area.

• Making exceptions for medical or belief reasons. Not doing so could lead to discrimination claims from employees with protected characteristics (see the section on “Objections to vaccination” below) or potentially make it more difficult for an employer to justify the dismissal of an employee with more than two years’ service.

Can we require all new starters to have received the vaccination as a condition of employment?

This is less risky than mandating vaccination for existing employees because there will be no risk of unfair dismissal claims from potential new recruits. They still, however, have the right not to be discriminated against because of protected characteristics. This means employers opting for this sort of recruitment policy will need to consider, for example, making exceptions be made for employees with medical or belief reasons for not being vaccinated? (See “Objections to vaccination” below.)

If we are mandating the vaccine, can we discipline or dismiss employees who refuse it?

This depends on why the employee is refusing and whether they have at least two years’ continuous employment and so can claim unfair dismissal.

If the objection is related to protected characteristics such as disability or belief, it could be discrimination to discipline or dismiss the employee (see “Objections to vaccination” below). 

If the employee is not protected by discrimination laws, the key question is whether they have two years’ service. If so, they could bring an unfair dismissal claim if dismissed for vaccine refusal and it would then be for an Employment Tribunal (ET) to assess the reasonableness of the employer’s decision to dismiss. In addition to the ordinary principles of fairness, the ET would consider human rights arguments. The European Court of Human Rights has recently confirmed that a compulsory child immunisation programme in the Czech Republic was a justifiable interference with human rights, given the need to maintain herd immunity and protect individuals, including those who cannot be vaccinated and are therefore particularly vulnerable. This case concerned government (rather than private sector employer) policy on “tried and tested” vaccines (such as the vaccine against polio) involving limited penalties for non-compliance, so the same principles would not automatically apply to an employer’s Covid-19 vaccine policy. It is, however, a potentially helpful decision for employers who wish to mandate the vaccine.

Before going as far as to dismiss an employee, employers would need to consider options short of dismissal. These might include allowing an exception, redeployment to another role, or potentially keeping the employee working from home (if possible). It remains to be seen if ETs would accept that measures such as regular lateral flow testing, evidence of natural immunity, or mask wearing could or should be deployed as alternatives for employees who refuse vaccination in circumstances where their employer has reasonable grounds to consider their dismissal. The NHS Covid pass takes the approach that evidence of natural immunity or a recent negative test are alternatives to full vaccination, so an employer would need to justify why these are not acceptable alternatives in their own workplace.

What about contractors, agency workers and visitors to our premises?

Contractors and agency workers are also protected under discrimination law, so the same considerations should apply, but they will have no right to claim unfair dismissal so the legal risks of a mandatory policy are significantly reduced. With visitors, it may be easier to point to key differences – for example, they may only be allowed to access one part of an office area where no employees are based and strict Covid safety measures are in place.

What should we be thinking about if we want to mandate the vaccination?

• Timing – it is unrealistic for most businesses to consider enforcing a mandatory policy until Autumn 2021 at the very earliest, subject to the progress of the vaccine roll out (including second doses).Some businesses may wish to act now to mandate that employees accept the vaccine when offered to them, in particular in new starter contracts (see above) whereas others may prefer to wait.

• Messaging – this will be different for every business according to its own culture. Some businesses may prefer to set out the stance they expect they will be taking now as a method of encouraging employees to accept vaccination when offered, others may prefer to adopt a policy of encouragement and paid time off to attend vaccination and wait to analyse whether there is a take up problem in their workforce before considering mandating.

• Exploring alternatives: Employers may wish to use this time to explore what alternatives there are to mandating vaccination and trial different approaches to reduce the number of unvaccinated employees e.g. offering incentives to vaccination and putting together an objective positive messaging campaign. Regular lateral flow testing may also be an appropriate alternative to vaccination for some employees. Employers looking to mandate the vaccine should think about evidence of why these alternatives are not reasonable or sustainable.

• Establishing rationale and evidence base for mandating vaccination: The evidence about the role played by the Covid-19 vaccine in preventing both infection and transmission is  becoming stronger. It is already clear than vaccination protects the vaccinated individual, albeit not completely. As the government points out in its response to the consultation on mandating the vaccine in care homes, further evidence has now emerged of the effect of vaccination on transmission, with recent research by Public Health England showing that vaccinated individuals are less likely to transmit the virus to others. The emerging evidence about transmission is significant because it provides a stronger basis for mandating the vaccine. 

• Voluntary take-up within the workforce.  The take-up of the vaccine among staff in English care homes was relatively low, particularly in London, and below the 80% threshold recommended by SAGE as the absolute minimum needed to prevent outbreaks. If the take-up of the vaccine within a particular workforce is already very high then (depending on the reasons for considering mandating it) a policy of mandating the vaccine may be unnecessary.  

• Workforce impact and exceptions: Employers should consider exceptions for employees who cannot accept the vaccine due to medical or belief reasons (see below). Employers should also consider completing an equality impact assessment to explore whether mandating the vaccine puts any protected group at a disadvantage. If it does, the policy may need to be justified irrespective of the reasons why it is putting that group at a disadvantage or there is the extra risk of successful claims from those in that protected group. In any case, it may impact on the diversity of the workplace which should be carefully considered.

• Consultation: This will help establish the reasonableness of the employer’s approach.

What process should we follow if we want to mandate the vaccine for our existing employees?

There are broadly two options and the best option will vary by employer.

1. Issue an instruction to accept vaccination with a failure to comply resulting in potential dismissal.

This approach is likely to be more successful if the instruction clearly fits within the wording of existing contracts and policies, and if those contracts and policies already make it clear that employees could be disciplined or dismissed for not complying with instructions of this sort.

2. Insert a new contractual term into contracts, with a failure to agree the new term resulting in potential dismissal

This approach will involve a process of changing terms across the workforce and may trigger collective consultation obligations. It puts the vaccination requirement on a longer-term contractual basis but can cause issues with employees who are happy to accept vaccination but oppose its inclusion in their contract. 

Objections to vaccination

What is the situation where employees refuse vaccination on medical advice?

Currently, the only publicised recommendation to avoid vaccination on medical grounds is for those who have had a serious allergic reaction to any of the vaccine ingredients. However, some individuals with disabilities may need to consult with their own doctors and receive different advice. If such employees are disabled for the purposes of the Equality Act 2010 (EqA), their decision not to get vaccinated could be “something arising” from that disability. This would mean that any less favourable treatment of such employees because they are not vaccinated would be discriminatory, unless objectively justified. We understand that the NHS Covid pass will allow individuals to demonstrate their exempt status in exceptional circumstances where a clinician recommends vaccine deferral or that vaccination is not appropriate and where testing is also not recommended on clinical grounds.

What if employees have a needle phobia?

This phobia is surprisingly common. Most individuals with such a phobia would probably struggle to bring themselves within the protected characteristic of disability for EqA purposes. The definition requires a physical or mental impairment that has a substantial and long-term negative effect on an individual’s ability to do normal daily activities. These are defined in the Equality and Human Rights Commission Code of Practice as “activities which are carried out by most men or women on a fairly regular and frequent basis”. It may be difficult to argue that receiving jabs is a normal day-to-day activity.

What about pregnant employees?

As of 16 April, the advice for pregnant women has changed and vaccination is now recommended, albeit with a specific vaccination such as Pfizer or Moderna. This is a significant change from the previous advice which was that routine vaccination should not be offered to pregnant women. 

Despite the change in official guidance, some women may be hesitant about accepting vaccination given the change in official advice is based on data from 90,000 cases in the US.

So employers should consider if they want to make exceptions for employees who fall within this category.

What is the position on employees who refuse vaccination because of their religion or belief?

The EqA protects employees against discrimination on grounds of religion or belief. While a small number of religious groups disapprove of vaccinations, most religions do not disagree with vaccination in principle. There had been some concern over what ingredients or stabilisers were used in the production of Covid-19 vaccines, but none of those that have been rolled out in the UK to date contain any animal-derived ingredients (or egg). 

Some ethical vegans may disagree with vaccinations on the basis that they will inevitably have been tested on animals. Ethical veganism has previously been found by an ET to amount to a belief, capable of being protected under the EqA.

As with employees who are advised against vaccination on medical grounds, employers will need to consider what steps to take with employees who genuinely object on the basis of religion or belief. This will depend on their risk assessments and overall policy approach. The government has decided not to provide a belief-based exemption for care home staff because it would be too difficult to implement and prove and would risk undermining the policy. An ET may not necessarily agree, however, so other employers may still need to consider an exemption or alternatives, bearing in mind that the number of cases in which this issue will arise is likely to be very small.

Employers should be careful not to judge or stereotype employees. Just because an employee is part of a religious group or an ethical vegan does not automatically mean they will refuse to be vaccinated, so this should not be assumed. Equally, employers should not assume that the reason for someone’s refusal is what the employer perceives their religion to be.

What about “anti-vaxxers”?

It is not outside the realms of possibility that an anti-vaccination belief could be protected by itself. A specific belief against vaccinations may be protected if the individual can explain it as part of a cohesive and serious conviction, rather than a point of view based on the present state of information available.

What if employees do not want to be vaccinated because of the risk of blood clots?

This is currently an issue with certain specific vaccines, in particular the AstraZeneca vaccine. It is important to stress that employers cannot force employees to be vaccinated against their wishes, so if an employee decides not to be vaccinated because of the risk of rare blood clots then their employer is not in a position to compel them, and can only point them towards current NHS guidance and advice. For employers who intend to mandate the vaccine, the key question is whether they can establish a strong enough reason to justify the dismissal of such an employee if they have more than two years’ service (an issue which is untested but explored above). If the employee’s concerns relate to a medical condition or history then they may be disabled under the EqA, which would result in them having additional rights not to be discriminated against, but in those circumstances the individual is likely to be offered an alternative vaccination.

What if employees are hesitant about vaccination based on other reasons?

Some employees may cite a variety of other reasons for their decision not to get vaccinated, potentially based on information they have read online. These individuals will not typically be protected under discrimination law as these types of reasons will not fall within the ambit of the EqA. However, they would still have unfair dismissal rights (including constructive dismissal) if they have over two years’ service. Employers should therefore tread carefully before taking any action that could breach the mutual duty of trust and confidence or deciding to dismiss an employee.

For employees who are citing possible “fake news”, the CIPD guidance has some useful suggestions on how employers can play a role in promoting a persuasive case for vaccination and counteracting misinformation.

Some employees may refuse vaccination as they may either believe or know that they have already had Covid-19, but the official medical advice remains that even those individuals who have had the virus should be vaccinated. This is because reinfection is possible and it is not yet known affirmatively how long any “natural” immunity acquired from having the infection lasts.

Time off for vaccination

Do we have to allow employees time off during working hours to receive a vaccination?

There is no general right in law for an employee to have time off for medical appointments, but we expect most employers will allow time off for Covid vaccinations and there are many cogent reasons to do so:

• Contracts and policies may include rights around attending medical appointments.

• Employees who are clinically vulnerable may be classed as disabled under the EqA and allowing time off for vaccination could be regarded as a reasonable adjustment.

• Employers have a legal obligation to provide a safe place of work and minimise risks for all employees. This could include enabling vaccination to take place.

• An unreasonable refusal to allow time off for vaccination amid a global pandemic could be a breach of trust and confidence, which could prompt constructive dismissal claims.

• Employment law issues aside, there could be negative PR implications from refusing to allow staff to attend vaccination appointments.

There is no legal requirement for employees to be paid for time off, although there are calls for this right to be introduced. In practice, many employers will allow paid time off for medical appointments. Some employers may wish to offer paid time off as an incentive (see above).

Can we ask employees to change their appointment to a more convenient time?

Wherever possible, we would recommend that employers allow employees to attend their vaccination at the time slot they have been allocated. Asking employees to reschedule their appointments outside of working hours may reflect badly on the employer, given the administrative burden on the NHS of having to rearrange appointments.

If, however, an employer has a valid reason not to allow an employee to attend their designated slot, it may be possible to ask the employee to reschedule the appointment – for example, if they do shift work that cannot be covered by anyone else or work on a site away from home. If employees are offered a choice of appointment times, it would be reasonable for the employer to ask them to choose a time that minimises disruption to the business.

What if the employee feels unwell after getting the vaccine?

Some employees may experience mild side effects after the vaccine, such as headache or feeling sick. If an employee is so unwell that they are unable to work then they would be entitled to sick leave. Acas guidance recommends paying full pay in these circumstances and adjusting any trigger levels in attendance management policies so that this type of short absence for side effects does not count towards the trigger. This is to ensure that employees are not deterred from getting vaccinated by the prospect of having to work if they experience side effects. Statutory sick pay would not generally be payable since the total period of incapacity is unlikely to be as long as four days.

Other vaccination issues for employers

How should we deal with disputes between colleagues over vaccination?

This could become a tricky area for HR professionals in future. For instance, there could be situations in which employees are uncomfortable working alongside other colleagues who have decided not to get vaccinated, and make their discomfort known. Or employees may spread misinformation about the vaccine and encourage colleagues not to get vaccinated.

These situations could become especially fraught if they involve characteristics that are protected under the EqA – for example, if an employee is inappropriately grilled on how their decision about vaccination fits with their beliefs, or if an employee with a vulnerable disabled child at home accuses colleagues of being irresponsible for not taking up the vaccine. As with other issues around clashes of rights in the workplace, this would require careful handling. Employers may need to remind employees to be sensitive and aware of the diversity of opinion that is likely to exist within the workplace.

Can we be liable for serious or long-term side effects of vaccination?

This may be a concern for employers who are mandating the vaccine or, in future, providing the vaccine (as and when it becomes commercially available). Such employers are unlikely to face liability for long-term or serious side effects of an approved vaccine unless they could somehow be found to have acted negligently. Employers typically provide flu jabs without these concerns arising.

Nonetheless, employers who plan to mandate the vaccine at an early stage should raise this question with their insurers. Note also that the Covid-19 vaccination has been added to the government’s Vaccine damage payment scheme.