Employers are\nfacing many difficult and untested employment law issues as the UK rolls out\nits Covid-19 vaccination programme. These FAQs cover whether an employer can\nmake vaccination compulsory for its employees, alternatives to a mandatory\nrequirement, time off for vaccine appointments and other issues<\/p>\n\n\n\n
Can we make it mandatory for existing employees to receive the Covid-19\nvaccination?<\/em><\/strong><\/p>\n\n\n\n Mandating\nvaccination for employees has never been tested in UK law. It may be possible\nfor some employers to require the vaccine for all their existing employees, but\nthis is likely to be a minority of cases.<\/p>\n\n\n\n The key legal\nproblems with mandating the vaccine are the risks associated with dismissing\nemployees who refuse and have over two years\u2019 service, and the potential for\ndiscrimination claims from employees with protected characteristics. Any\nemployer proposing mandatory vaccination will therefore need to consider.<\/p>\n\n\n\n If we are mandating the vaccine, can we discipline or dismiss employees who\nrefuse it?<\/em><\/strong><\/em><\/p>\n\n\n\n This depends\non why the employee is refusing and whether they have at least two years\u2019\ncontinuous employment and so can claim unfair dismissal.<\/p>\n\n\n\n If the\nobjection is related to protected characteristics such as disability, pregnancy\nor belief, it could be discrimination to discipline or dismiss the employee. We\nexpect most employers would make exceptions in these cases if this is in line\nwith their risk assessment.<\/p>\n\n\n\n If the\nemployee is not protected by discrimination laws, the key question is whether\nthey have two years\u2019 service. If so, they could bring an unfair dismissal claim\nif dismissed for vaccine refusal and it would then be for an Employment\nTribunal (ET) to assess the reasonableness of the employer\u2019s decision to\ndismiss. <\/p>\n\n\n\n Before going\nas far as to dismiss an employee, employers would need to consider options\nshort of dismissal. These might include allowing an exception, redeployment to\nanother role, implementing other safety measures or potentially keeping the\nemployee working from home (if possible).<\/p>\n\n\n\n To establish\na fair dismissal, employers would also need to consider how this fits in with\ntheir existing employment contracts and policies. For example, if it is a case\nof non-compliance with health and safety instructions, check that this is cited\nas an example of something that could lead to dismissal in existing policy\ndocuments.<\/p>\n\n\n\n Can we strongly encourage employees to accept vaccination?<\/em><\/strong><\/p>\n\n\n\n Yes \u2013 and all\nemployers should be doing so.<\/p>\n\n\n\n Across all\nsettings, employers are obliged under the Health and Safety at Work Act 1974 to\ntake reasonable steps to reduce any workplace risks. Encouraging uptake of the\nvaccination among employees to protect themselves and everyone else at the\nworkplace is one way to reduce the risks.<\/p>\n\n\n\n Should we have a vaccination policy?<\/em><\/strong><\/p>\n\n\n\n Yes, if you\nare offering incentives for employees to take up the vaccine (see below) or\n(unusually) mandating it. You would then use the policy to explain and\ncommunicate your approach, along with the terms of any incentives offered. <\/p>\n\n\n\n Can we offer incentives for employees to accept vaccination?<\/em><\/strong><\/p>\n\n\n\n Potentially,\nyes. Offering incentives to encourage vaccine take-up is a commonly discussed\napproach in the United States, but it remains to be seen if it becomes common\npractice in the UK where general take-up of the vaccine is currently high and\nincentives may not be needed.<\/p>\n\n\n\n Incentives\ncould be vouchers, cash or simply allowing an employee paid time off to attend\ntheir vaccination appointment (see further below). <\/p>\n\n\n\n Employers\nopting for incentives would need to consider their approach to employees with\nprotected characteristics (e.g. pregnancy, disability or belief) who cannot\nreceive the vaccination. It may be possible to justify offering incentives only\nto employees who have been vaccinated as a proportionate means of meeting\nlegitimate health and safety aims.<\/p>\n\n\n\n Can we pay for employees to receive the covid-19 vaccination privately?<\/em><\/strong><\/p>\n\n\n\n This is not\ncurrently an option as the vaccine is not commercially available and it appears\nunlikely it will become available to purchase for some time.<\/p>\n\n\n\n Can we manage our return to the office based on who has been vaccinated?<\/em><\/strong><\/p>\n\n\n\n Potentially,\nyes. Some employers with workforces who can work from home are considering\nopening up the office on a phased basis to those who have been vaccinated. <\/p>\n\n\n\n Employers\nwould also need to consider when it would be appropriate to introduce such a\nrequirement, given that most of the younger adult population will not receive a\nfirst dose until the end of July. <\/p>\n\n\n\n A\nreturn-to-office policy based on vaccine status could also discriminate against\nemployees with other protected characteristics (e.g. disability, belief or\npregnancy). <\/p>\n\n\n\n If an\nemployer mandates the return of vaccinated employees, this could also cause\nissues with employees who have been vaccinated but are unwilling to come back.\nThis will raise similar legal issues to those dealt with in our FAQs on\nstaffing decisions<\/a>. Employers\nwill need to take particular care in relation to employees with disabilities,\nfor whom remaining on a homeworking arrangement might be a reasonable\nadjustment.<\/p>\n\n\n\n Can we require employees to inform us of their vaccination status?<\/em><\/strong><\/p>\n\n\n\n Probably, but this will depend on what role vaccination status plays in the employer\u2019s risk assessment. Collection of this data must be necessary and relevant for a specific purpose<\/p>\n\n\n\n Do we have to allow employees time off during working hours to receive a vaccination?<\/em><\/strong><\/p>\n\n\n\n There is no\ngeneral right in law for an employee to have time off for medical appointments,\nbut we expect most employers will allow time off for Covid vaccinations.<\/p>\n\n\n\n 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).<\/p>\n\n\n\n If you have any specific questions you would like advice on, then please contact: Abi.Frederick@lewissilkin.com<\/a> or koichiro.nakada@lewissilkin.com<\/a> of Lewis Silkin LLP.<\/p>\n","protected":false},"excerpt":{"rendered":" Employers are facing many difficult and …<\/p>\n","protected":false},"author":2,"featured_media":3319,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[14],"tags":[202,397,390,398,391,399,392,400,393,401,394,395,149,396],"jetpack_featured_media_url":"https:\/\/www.centrepeople.com\/jp\/article\/wp-content\/uploads\/2021\/04\/202104-legal.jpg","_links":{"self":[{"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/posts\/879"}],"collection":[{"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/comments?post=879"}],"version-history":[{"count":5,"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/posts\/879\/revisions"}],"predecessor-version":[{"id":3856,"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/posts\/879\/revisions\/3856"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/media\/3319"}],"wp:attachment":[{"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/media?parent=879"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/categories?post=879"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.centrepeople.com\/jp\/article\/wp-json\/wp\/v2\/tags?post=879"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
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. <\/li><\/ul>\n\n\n\n
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