The ‘compulsory vaccinations’ discussion is currently at the forefront of many employers’ minds. Should we adopt this, should we not and if we do, what are the implications?
Compulsory vaccines have been mandated in the care home sector. Since 11 November 2021, care homes must only allow workers to enter their premises if they have had their first and second dose of a Covid-19 vaccine (unless medically exempt). This was implemented to protect both care home residents and the staff.
Recently, health secretary Sajid Javid told MPs that he will set a deadline of 1 April 2022 to give 103,000 unvaccinated frontline workers in the health and wider social care sector time to get fully vaccinated.
A spring deadline will hopefully prevent a max exodus of staff during the winter months, the busiest time of year. More than 93 per cent of frontline NHS workers have received their first dose and 90 per cent their second, higher than the general working population.
There are however, significant concerns surrounding this; if these non-vaccinated staff do not take up vaccines, their roles will likely be terminated. According to an NHS funding page, the NHS workforce is already short of 84,000 full time staff, 34,000 nurses and 2,500 GPs.
Efforts to support voluntary uptake of the vaccine must occur first before staff are dismissed otherwise the NHS will be desperately understaffed, more so than now.
What does the law say for other businesses?
Businesses can by all means encourage their employees to be vaccinated – by offering paid time off to get the vaccine, providing information and guidance on how and where to get the vaccine.
However, for sectors other than health and care, there is no legal right to force employees to take up the vaccine. Instead, alternatives to compulsory vaccination should be explored, for instance, social distancing, regular testing, mask requirements, working remotely, staggering shifts, providing hand washing and sanitising stations etc.
Imposing a mandatory vaccination policy could lead to claims being made by employees, such as:
- Unfair dismissal – an employer would need to prove that it was reasonable to request that employees get the vaccine. In non face-to-face industries, this is unlikely as other measures could be taken.
- Discrimination – a mandatory vaccination requirement could be indirect discrimination against employees with certain protected characteristics, for example, race or disability.
Indirect discrimination can be justified as a proportionate means of achieving a legitimate aim, such as protecting health and safety of staff and visitors. But, with the extent to which vaccination reduces transmission still under review, employers may find it hard to justify compulsory vaccination on such grounds.
Can I request that an employee tell me if they have been vaccinated?
An employee’s vaccination status is protected as sensitive personal data. Employers need employees’ consent to process this information and to have a good reason for requiring this information.
The Information Commissioner's Office (ICO) guide says before employers decide to check employee’s vaccination status, they should be clear of their reasons for doing so – does asking for vaccine status fulfil this goal? This goal should be made available to employees in a clear and transparent way.
For health and care employers, this should be straightforward to establish. For other employers, they will need to consider if such a goal can be achieved by other less intrusive means and, if so, adopt such other means.
Ben Stepney is a lawyer in the employment team at Thomson Snell & Passmore