Key latest developments
- The government is rolling out vaccinations to nine priority groups who are most at risk from Covid-19. These consist of frontline health and social care workers, the clinically extremely vulnerable and those aged over 50.
- The current estimate is that everyone in the nine priority groups will have been offered the first dose of the vaccination by the end of April. The remainder of the adult population is set to be offered a first dose by the end of July.
- In its Spring 2021 Covid-19 Response, the government has published its “roadmap” out of lockdown in England. The roadmap sees restrictions gradually lifting in a sequence of “steps” with indicative dates for each step but the flexibility to proceed more slowly if required. The vaccination programme is key to paving the way for restrictions to be lifted in line with the proposed timetable.
- The government is exploring to what extent Covid-status certification could play a role in reopening the economy, reducing restrictions on social contact and improving safety. Covid status certification involves using testing or vaccination data to confirm that people have a lower risk of transmitting Covid-19 to others. The government’s review is considering whether Covid-status certificates could be used to enable access to settings or a relaxation of Covid-secure mitigations.
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, but this is likely to be a minority of cases.
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. Any employer proposing mandatory vaccination will therefore need to consider:
- Whether it has 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. 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). However, the government is the largest employer in health and care settings and is not making the vaccination mandatory, so employers would need a strong reason for taking a different stance in their organisation. This may depend on the circumstances at the time, including the latest scientific evidence on the extent to which the vaccine protects against infection and transmission, the presence of Covid-vulnerable individuals in the workplace, and the alternative Covid-secure measures that it is reasonable to expect customers, clients, contractors and other employees to take.
- Making exceptions for medical, pregnancy or belief reasons. Not doing so could lead to discrimination claims from employees with protected characteristics (see the section on “Objections to vaccination” below).
- Whether there are any other discrimination risks. For example, mandating the vaccine before all adults have been offered the opportunity to be vaccinated would discriminate against younger employees. Mandating the vaccine could potentially also discriminate against BAME groups if it turns out that they are more likely to refuse vaccination. (Early indications suggest this, although at present it is far from clear that a vaccination policy would put any ethnic group at a disadvantage). Where these discrimination risks are present, employers would need to be able to justify their policy by demonstrating that they have a legitimate aim (e.g. health and safety) and that mandating the vaccine was a proportionate means of achieving this.
- Keeping any such policies under constant review. If “herd immunity” is eventually established, it will be hard to justify not making any exceptions for vaccine-objectors, whether protected by discrimination laws or not. If the government introduces Covid-status certificates, this will also have an impact on employer policies.
- Consulting with any recognised union or appropriate workforce representatives.
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, pregnancy or belief, it could be discrimination to discipline or dismiss the employee (see “Objections to vaccination” below). We expect most employers would make exceptions in these cases if this is in line with their risk assessment.
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. As discussed above, it is likely to be difficult to defend a decision to dismiss an employee for refusing a vaccine, especially outside of healthcare and similar settings. In addition to the ordinary principles of fairness, the ET would consider human rights arguments including rights to privacy.
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, implementing other safety measures or potentially keeping the employee working from home (if possible).
To establish a fair dismissal, employers would also need to consider how this fits in with their existing employment contracts and policies. For example, if it is a case of non-compliance with health and safety instructions, check that this is cited as an example of something that could lead to dismissal in existing policy documents.
If we are mandating the vaccine, what if an employee won’t tell us their vaccination status?
If mandating vaccination, employers will need to ask employees to disclose their vaccination status. This information would be classed as special category data and should only be processed after a data protection impact assessment (DPIA) has been carried out. (We explore this issue in more detail below under “Can we require employees to inform us of their vaccination status?”.)
A failure by an employee to disclose their vaccination status to the employer would need to be treated as a disciplinary matter, in the same way as an employee’s explicit refusal to accept vaccination.
What about contractors, agency workers and visitors to our premises?
Where contractors and agency workers work alongside employees, it will be very difficult to show any substantial reason for a difference in treatment. Contractors and agency workers are also protected under discrimination law, so the same considerations should apply. 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 alternative options are there to mandating vaccination?
Can we strongly encourage employees to accept vaccination?
Yes – and all employers should be doing so.
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.
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. Allowing paid time off to attend vaccination appointments is likely to be much lower risk than offering vouchers or cash.
Employers opting for incentives would need to consider their approach to employees with protected characteristics (e.g. pregnancy, 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.
Can we require all new starters to have received the vaccination as a condition of employment?
This is legally risky, but less so 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 the following:
- Should exceptions be made for employees with medical or belief reasons for not being vaccinated? (See “Objections to vaccination” below.)
- The timing of introducing any such requirement, given that younger people cannot in general currently access the vaccine.
- Could such a policy discriminate more generally against BAME candidates?
- If there is any discriminatory impact on employees on grounds of age or ethnicity, could this potentially be justified – for example, as a proportionate means of meeting health and safety aims? If the policy is not being introduced for existing staff, does this sort of recruitment policy actually mitigate risk? What is the follow-on impact on the ethnic/age make-up of the organisation?
Can we manage our return to the office based on who has been vaccinated?
Potentially, yes. Some employers with workforces who can work from home are considering opening up the office on a phased basis to those who have been vaccinated. It is currently unclear if this will be in line with government guidance, which remains that everyone who can work from home should do so.
Employers would also need to consider when it would be appropriate to introduce such a requirement, given that most of the younger adult population will not receive a first dose until the end of July. Introducing this policy before all adults have been offered a vaccination would be indirectly discriminatory against younger employees who want to return as soon as possible but are being kept at home. A return-to-office policy based on vaccine status could also discriminate against employees with other protected characteristics (e.g. disability, belief or pregnancy). Employers could potentially defend such a policy as objectively justifiable, but this will involve considering any discriminatory impact alongside their risk assessments to determine if a policy of only allowing vaccinated individuals into the office is reasonable and proportionate. This analysis is likely to change over time.
If an employer mandates the return of vaccinated employees, this could also cause issues with employees who have been vaccinated but are unwilling to come back. Employers will need to take particular care in relation to employees with disabilities, for whom remaining on a homeworking arrangement might be a reasonable adjustment.
Can we require employees to inform us of their vaccination status?
Probably, but this will depend on what role vaccination status plays in the employer’s risk assessment. The ICO has now updated their 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.
Before processing any 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. Given all employers are required to undertake a risk assessment and take measures to make their workplace Covid-secure, it is reasonable to think that most employers operating workplaces will have a legitimate reason to collect such data, certainly in the short term. However, the ICO warn that keeping vaccination status data for monitoring purposes only would be more difficult to justify.
Employers should nonetheless 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. The situation should be kept under continuous review - if for example herd immunity were to be established, there would be no reason to maintain a vaccination register.
What are the alternatives to vaccination?
The government’s review into Covid-status certification is currently exploring whether confirmation of vaccine or testing status could be used to enable access to settings or a relaxation of Covid-secure mitigations, suggesting that a recent negative test could be classed as equivalent to vaccination for some purposes. With the rollout and increasing accuracy of lateral flow testing, regular testing could become widespread before all adults are fully vaccinated and could continue for some time afterwards. The government is currently encouraging employers to adopt workplace testing programmes and is providing free test kits. It is possible that employees who do not wish to take the vaccine (or are advised against doing so) may propose testing as an alternative, especially if the employer is already running a testing programme.
Various Covid safety measures such as social distancing, mask wearing and hand sanitising are not currently alternatives to vaccination (they are still in place for everyone, irrespective of vaccination status) but it is possible that this will change over time. The government has committed to review the need for social distancing and other measures ahead of Step 4 in its roadmap out of lockdown (pencilled in for 21 June) and may conclude that these safety measures no longer need to be adopted by everyone. At that point, there may be questions about whether such measures (which can be difficult for business) can or should be adopted by employees who are not vaccinated.
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 choice 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.
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.
Nonetheless, it is possible that someone suffering with severe needle phobia could experience an extreme anxiety episode triggered by the prospect of vaccination, which might result in a disability under the EqA. It may be that the NHS will provide support or treatment to help affected individuals get through the process of receiving the vaccination.
What about pregnant or breastfeeding employees?
The current advice is that pregnant individuals should not routinely receive vaccination. It is only recommended for pregnant individuals who are at high risk of contracting Covid-19 or suffering serious complications from it. Vaccination can be received while breastfeeding, but there is no data on the safety of the vaccine in this context.
Employers should be ready to make exceptions for employees who fall within this category. Requiring employees who are able to work from home to continue doing so may be the easiest action to take. Pregnant individuals remain classed as clinically vulnerable. Even if vaccinated, given protection is not 100% guaranteed, employers should take great care before requiring them to move out of the safest on-site roles or to return to the workplace if they are homeworking. Employers are required to undertake specific risk assessments for pregnant employees and may need to temporarily alter their working conditions or hours, provide suitable alternative work on the same terms and conditions or (as a last resort) suspend them on full pay.
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). Many religious leaders have urged their followers to accept vaccination.
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. Some ethical vegans may therefore refuse vaccination, although not all animal rights organisations are against vaccination in principle. (For example, the US-based organisation People for the Ethical Treatment of Animals states that refusing medicine tested on animals will not spare any animals the same fate in the future and encourages campaigning for a change in the law rather than failing to follow health advice.)
While there will be some individuals with protected beliefs against vaccination, the latest announcement on vaccine ingredients combined with religious leaders and campaigning groups advocating for vaccination means that the likelihood of valid belief-based objections is now significantly reduced.
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. For example, if the employer is operating a mandatory vaccination policy, it will need to consider whether it can exempt individuals with certain religion or belief-based objections or require/allow homeworking if this is possible. Other options, such as not recruiting the individual or dismissing them, may be difficult to justify as proportionate.
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.
Finally, employers should note that some Muslims may choose not to take the vaccine during daylight hours in Ramadan (expected to begin around 12th April). The British Islamic Medical Association has published guidance that taking the vaccine would not invalidate the fast but nonetheless it has been reported that certain urban centres may increase evening-time vaccination slots to mitigate any potential drop-off in vaccine uptake.
What about “anti-vaxxers”?
It is not outside the realms of possibility that an anti-vaccination belief could be protected by itself, but we consider this is unlikely. In order to qualify for protection, the belief must meet several tests, such as it being worthy of respect in a democratic society and attaining a certain level of cogency and cohesion. There are a wide range of different reasons people may have for holding anti-vaccination views. It was for this reason that an ET previously decided that vegetarianism was not a philosophical belief.
A more 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, although this will be difficult to prove.
What if employees are hesitant about vaccination based on other reasons?
Some employees may cite a variety of 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. 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 liable for serious or long-term side effects of vaccination?
There are no long-term reported complications from the Covid vaccine but this may nonetheless 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.