Getting straight to the point

We answer the most common questions about employment and the COVID-19 vaccination

While it’s undoubtedly a positive step, rollout of the new COVID-19 vaccine also poses a challenge for employers. Some are already trying to make vaccination compulsory – but can you really force staff to have it? What if someone refuses or is exempt? SELECT’s Director of Employment & Skills, Fiona Harper, examines some of the most common questions currently being asked.

Can an employer make an employee get the vaccine?

The vaccine isn’t required by law, and there may be many valid reasons why an employee can’t be vaccinated. Acas says employers should support employees to get the vaccine but can’t force them to have it. Some employees who should not, or may not want to, receive the vaccine may fall within the protected characteristics under the Equality Act 2010, e.g. pregnant women and those with certain health conditions or religious/philosophical beliefs. A mandatory vaccination policy without exceptions would leave employers open to the risk of discrimination claims. If such a requirement was indirectly discriminatory, the employer would need to be able to justify its position, which may be difficult if it adopts a blanket approach.

What if employees have religious or other objections?

A recent YouGov survey suggests that around one-fifth of the public are unlikely to get the vaccination, with reasons ranging from lack of confidence in its safety to opposition to vaccinations in general.

The Equality Act 2010 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. However, as a result of other beliefs of those religions - such as not eating or using animal-based products - followers may refuse the vaccination because of its ingredients, e.g. pork gelatine. Vegans may also disagree with vaccinations that contain animal-based ingredients or have been tested on animals.

Some people with recognised protected beliefs may therefore refuse the COVID-19 vaccination because of that belief. It is important to remember that people who follow a particular religion may still choose to get the vaccination even if there are religious arguments against it, and ethical vegans may make the same choice even if the vaccine does contain animal products or has been tested on animals. This does not mean that those individuals no longer have protected beliefs, or that other people who choose to refuse the vaccination cannot be protected.

Could a general belief against vaccinations be protected as a philosophical belief? In order to qualify the belief must:

• Be genuinely held

• Be a belief and not an opinion or a viewpoint based on the present state or information available

• Relate to a weighty and substantial aspect of human life and behaviour

• Attain a certain level of cogency, seriousness, cohesion, and importance

• Be worthy of respect in a democratic society and compatible with human dignity and the fundamental rights of others.

A general belief against vaccinations is unlikely to be protected because the reasons why each person may hold this belief will differ. 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 would be difficult to prove.

In conclusion, while it is not outside the realms of possibility that an anti-vaccination belief could be protected by itself. In contrast, people with religious beliefs against the vaccination and ethical vegans objecting due to animal products/testing are likely to have a protected belief. Vaccination policies may therefore be indirectly discriminatory unless they can be justified.

What if an employee has medical reasons not to be vaccinated?

It’s possible that employees with certain medical conditions will be advised against taking, or choose not to receive, the vaccine. Such employees may be disabled for the purposes of the Equality Act 2010 and their choice not to get vaccinated could be “something arising from” that disability. This would mean they could be treated unfavourably as a result unless this was justified within the vaccination policy.

Can an employer dismiss an employee for refusing the vaccine?

This is unlikely. A contractual obligation to be vaccinated is not likely to be reasonable unless it is essential and necessary for the employee to carry out their role, e.g. in a high-risk healthcare environment.

Can employers provide the vaccination to their employees?

The government’s medical experts have published an outline of how any vaccine will be rolled out. It’s clear from this that healthier, younger members of the public will be the last to be offered a vaccine and that vaccines will not be commercially available for some months.

Should employers pay for the vaccine?

This is not currently an option as vaccines are not commercially available. However, if an employer requires an employee to be vaccinated as a health and safety measure, it would be required to pay, much like many employers do for flu vaccinations. This would not be a taxable benefit if the cost is less than £50. It is also possible that, if the cost exceeds £50, the government will provide for an exemption.

How will a vaccine impact an employer’s risk assessment?

Employers should update their risk assessments to reflect the availability of the vaccine when it’s rolled out more widely. These may need to determine if additional measures can be put in place if an employee chooses not to be vaccinated. This will be of greater importance in settings such as health and care where COVID-19 is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) and choosing not to have the vaccination would put patients at risk.

Can employers make it mandatory health & safety requirement for employees to be vaccinated?

The Health and Safety at Work Act (HSWA) obliges employers to reduce workplace risks. To meet those duties, it is highly likely to be reasonable for employers to ask employees to be vaccinated. Employees also have a duty under the HSWA to co-operate with their employer so that the employer can comply with their duty to reduce workplace risks. 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 also mandate the vaccination as a health and safety requirement. However, it may be risky to say that a refusal to get the vaccine would necessarily amount to a health and safety breach by the employee, given that the government itself – the largest employer in health and care settings – is not making the vaccination mandatory.

What about data protection?

Records held about employees’ health fall under the category of special category data, so require additional safeguards. Any employer considering introducing a vaccine monitoring or testing programme should conduct a Data Protection Impact Assessment (DPIA) to appraise any new areas of risk. Employers may also need to update their employee privacy notice to reflect the new activity, including how long it will be kept for and whether there is a need to update their data protection policies and procedures and a record of processing activity.

Should employers be encouraging the vaccine?

Employers need to consider vaccination as part of their risk assessment and should encourage employees to get vaccinated once this becomes a realistic possibility. Any employer intending to mandate the vaccine as part of its approach to reducing risks needs to be aware that they will be open to discrimination claims and should consider whether there are reasonable alternatives. This should be explored when carrying out the risk assessment.

Employers should 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.

Vaccination policies could potentially be objectively justified as a proportionate means of achieving a legitimate aim. Employers are likely to have legitimate aims relating to health and safety and maximising the number of employees who can attend work safely. Vaccination policies may be a proportionate way of achieving those aims, although this will depend upon the way in which they are operated and the impact on the individual.

A policy which, for instance, allows employees to return to offices only if they have been vaccinated and leaves other workers working at home could well be justifiable. The legitimacy of the employer’s aims and whether its policy is proportionate are questions to which the answer may vary over time. For example, once “herd immunity” has been established, it will be harder to justify not making any exceptions for vaccine-objectors.

What does this mean for employers?

At present, it seems clear that we are still some time away from a vaccine being available to all employees. These questions will all need to be considered in the light of the circumstances existing at that time, so employers should not be looking to finalise their policies just yet. The vaccine is still in its early stages and is not yet widely available so employers should avoid hard-line policies and knee-jerk reactions. A supportive attitude to vaccination is much safer and likely to be more productive than a heavy-handed and reactive approach requiring contractual obligation. If an employee cannot have the vaccine or refuses it, an employer should consider what alternatives are available. Employers have an obligation to ensure the health and safety of their staff at work, so staff who cannot have the vaccine should keep other distancing measures and have regular testing.

What can employers do now?

As the recovery from the pandemic progresses, we expect to see vaccination requirements more and more, and no doubt it will soon be tested at an employment tribunal. To avoid your business being the test case, you should consider your policies carefully and take advice as early as possible. Look out for new guidance on vaccination policies and documentation on the SELECT website over the coming weeks and talk to our Employment Team.

· If you have an employment query, call SELECT’s dedicated hotline on 0131 445 9216, available 8.30am-5pm Monday-Thursday and 8.30am-2.30pm on Friday.