Apr 2021 – Coronavirus vaccination FAQs
Employers are facing many difficult and untested employment law issues as the UK rolls out its Covid-19 vaccination programme. These FAQs cover whether an employer can make vaccination compulsory for its employees, alternatives to a mandatory requirement, time off for vaccine appointments and other issues
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..
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.
- Making exceptions for medical, pregnancy or belief reasons. Not doing so could lead to discrimination claims from employees with protected characteristics.
- 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.
- Keeping any such policies under constant review. If “herd immunity” is eventually established, it will be hard to justify a mandatory policy.
- 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. 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.
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.
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.
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).
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.
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.
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.
A return-to-office policy based on vaccine status could also discriminate against employees with other protected characteristics (e.g. disability, belief or pregnancy).
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. This will raise similar legal issues to those dealt with in our FAQs on staffing decisions. 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. Collection of this data must be necessary and relevant for a specific purpose
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.
There is no legal requirement for employees to be paid for time off, although some employers may wish to offer paid time off as an incentive (see above).
If you have any specific questions you would like advice on, then please contact: Abi.Frederick@lewissilkin.com or koichiro.nakada@lewissilkin.com of Lewis Silkin LLP.