Exploring Vaccination Policies

Exploring Mandatory Vaccination Policies

Employment associate Catherine Hawkes explains the legal hurdles of mandatory vaccinations and some alternative approaches that employers can take

Medical aesthetic businesses, like many others, are assessing how they can move forward, working safely and securely alongside the risks of COVID-19, protecting both staff and customers. There is currently no legislative power for the UK government to mandate COVID-19 vaccination across the board. However, there are sectors in which existing primary legislation enables the government to bring in regulations on mandatory vaccination. From November 11, 2021, getting a COVID-19 vaccination will be made compulsory for those working in care homes in England. The legislation will apply to all Care Quality Commission (CQC) regulated service providers of nursing and personal care, in care homes.1 The duty applies not only to employees, but will also extend to all agency workers, volunteers, healthcare workers and tradespeople that might be engaged by the home. The new regulations are being challenged on the grounds that it contravenes section 45E of the Public Health (Control of Disease Act) 1984.2 This Act says that whilst regulations can be made to stop the threat of infection or contamination, they may not include provision requiring a person to undergo medical treatment, including vaccination. Further, following a government consultation on mandatory vaccination for frontline NHS staff, it was recently announced that from April 2022, all NHS staff in England will have to get both COVID-19 vaccines or risk dismissal from their employment.3 This is likely to cause difficulties amongst staff who may choose to raise grievances against their employer. It is likely that the NHS will focus on redeployment opportunities to avoid widespread dismissals and resignations. There are also some non-frontline businesses who are introducing mandatory vaccination for their workers. For example, Pimlico Plumbers caused media controversy earlier this year when it announced its new policy as being, ‘no jab, no job’.4 However, whilst it may appear tempting for businesses to insist on mandatory vaccination, it is important to understand the legal obligations before embarking on any such approach.

Legal position In the absence of vaccination becoming a legal requirement, an employer cannot force an employee to be vaccinated without their consent. Vaccination without consent could amount to the criminal offences of assault and battery. Therefore, an employer outside of the regulations that is considering imposing a mandatory vaccination requirement or treating employees or job applicants differently because of their vaccination status, should be mindful of the legal risks.5 The Health and Safety at Work Act 1974 requires employers to take reasonable steps to reduce any workplace risks, and this duty does give employers justification for encouraging their employees to be vaccinated to protect both themselves and everyone else at the workplace.5

Discrimination However, the key risk to employers of introducing a blanket policy on mandatory vaccination would be a challenge by employees on discrimination grounds. There are several valid reasons why an employee might refuse the vaccine, and this could be related to a protected characteristic under the Equality Act 2010, such as religion or philosophical belief, race, age, pregnancy, or disability.6 Therefore, introducing a policy or seeking to treat individuals unfavourably for not taking the vaccine such as subjecting them disciplinary action, reducing pay, or refusing their attendance at the workplace could expose an employer to discrimination claims.

Reasonable management instruction There is scope for employers to claim that requiring staff to get the vaccine is a reasonable management instruction and could in theory initiate disciplinary (or even dismissal) proceedings for a failure to follow a reasonable instruction. However, the courts and tribunals have not yet commented on whether mandatory vaccination would be considered a ‘reasonable instruction’ in the circumstances and so to adopt this approach runs significant legal risks.

Constructive unfair dismissal Further, there is an implied duty of trust and confidence which is incorporated into every contract of employment, which exists between an employer and an employee. Adopting a policy which applies pressure on employees to take the vaccine without justification, could result in a breach of the trust of confidence, entitling employees to resign and bring claims for constructive unfair dismissal if over two years’ service.7

Consider alternatives Employers should remember that vaccination is just one measure of protection and the extent to which the virus will further mutate is still unknown. Employers still need to consider

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other measures that can be taken and should stay up-to-date with the latest government advice, adjusting their plans accordingly. High vaccine uptake is a way in which both staff and customers can be protected in the workplace. However, employers have many options to protect and reassure staff and customers whilst encouraging vaccine uptake, without resorting to a mandatory policy.

Positive approach to vaccination A positive approach to vaccination can increase the level of uptake amongst staff without the requirement being mandatory (and thus raising the issues detailed above). This includes ensuring staff have access to clear information about the risks of vaccination and how to overcome or manage those risks, as well as information about the value and benefits of vaccination. Further, employers can provide confidential support to staff who have any vaccine related concerns and consider allowing paid time off to obtain the vaccine if necessary.

Update/create your vaccine policy An alternative approach without the risks of a mandatory vaccination programme is for employers to introduce a policy which encourages the workforce to get vaccinated against COVID-19. With a COVID-19 vaccine policy, it is easier to keep your staff fully informed of your company’s position, increasing trust amongst staff. Within the policy, it is advisable to include the following:

• Who the policy applies to, e.g. employees, consultants, casual workers and agency workers • Information about the COVID-19 vaccination and educating employees about the vaccine’s safety, health benefits and addressing their concerns • Whether you will keep track of who has had the vaccine and, if so, how you will record and store this data confidentially • How you will maintain a COVID-19 secure workplace • Allowing paid time off to attend any vaccination appointment • Any incentives which will be provided for vaccination

Sharing vaccination status Employers should be mindful of their obligations under the General Data Protection Regulation (GDPR). Personal data about an employee’s health will amount to ‘special category data’ under the GDPR and therefore, is personal data which is afforded additional protection because it is sensitive.8 To process special category data, employers will need to have a lawful basis for doing so under Article 6 of the GDPR.9 Employers are entitled to ask employees whether they have been vaccinated, however, they will need a legitimate reason for processing this information, because processing any data about health is sensitive. For example, a legitimate reason could be to assist employers with policies such as which staff should self-isolate and when, therefore helping reduce the risks of transmission throughout the business. Employers will therefore need to consider their reason for insisting on and collecting data on vaccinations and be clear about what they intend to do with that data, otherwise they could be in breach of the GDPR. 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.10 However, it also confirms that if there is a good reason for collecting the information, then there will be a lawful basis to process the data. The safest legal basis 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 needs 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. Further, 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 escalate to insisting upon it. The information should only be used in a way that the employee would reasonably expect and should not result in any unfair or unjustified treatment of the employee. It is very difficult, for example, to envisage a circumstance where an employer could justify sharing a specific individual’s vaccine status with other employees.

Recruitment Requiring new starters to have the vaccine is less risky than mandating vaccination for existing employees because there will be no risk of unfair dismissal claims from potential new recruits. This is because new starters will not have the requisite two years’ service to bring this type of claim. However, they still have the right not to be discriminated against because of a protected characteristic under the Equality Act (such as age, sex, race, religion or belief, disability etc).6 Therefore, employers will need to carefully word their recruitment policy so that applicants with valid reasons for refusing the vaccine are not prevented from applying for the role.

Weigh up your options Whilst many businesses, particularly in customer facing and healthcare roles, will want to ensure that their staff and customers are as protected as possible, the potential legal repercussions of mandatory vaccination policies should not be overlooked. As above, there are many ways in which businesses can protect themselves without introducing mandatory vaccination policies, and these should be considered where appropriate. While currently, mandatory vaccination only applies to care workers from November 11 2021 and NHS staff from April 2022, employers should ensure that they keep themselves up-to-date with any government guidance which may impact their business.

Catherine Hawkes is an associate at Royds Withy King LLP, specialising in employment and HR law. Hawkes qualified in September 2015 and her experience includes advising on a variety of employment law related issues including unfair dismissal, discrimination, redundancy/ restructure and whistleblowing.

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