BPE Solicitors look at Vaccination do’s and don’ts for employers

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Sarah Lee, Partner in the Employment team at BPE Solicitors, discusses what stance employers should be taking in relation to COVID vaccinations

Ikea’s policy regarding sick pay for unvaccinated staff and the widespread debate regarding mandatory vaccinations for frontline health and social care workers (now abandoned) have brought vaccination in the workplace back under the spotlight. So what can and can’t employers do?

CAN EMPLOYERS REQUIRE STAFF TO BE VACCINATED?

Currently not unless the employer is a regulated care home.

Care homes have been able to require workers to be vaccinated (unless exempt) since 11 November 2021. However, the Government has now announced that requirement will be removed.

The Government has also announced that the regulations regarding mandatory vaccinations for frontline health and social care workers will be revoked, subject to public consultation and parliamentary approval, so watch this space.

So, in most cases, employers are not legally entitled to require staff to be vaccinated, but that won’t necessarily stop an employer from imposing such a requirement, e.g. to help protect the health and safety of staff and customers in the workplace.

WHAT ARE THE RISKS IF EMPLOYERS IMPOSE MANDATORY VACCINATION?

This could lead to a plethora of employment tribunal claims including:

  • Constructive dismissal– Employees with 2 years’+ service could argue that requiring them to be vaccinated without their consent as a condition to providing work is a fundamental breach of their contract, entitling them to resign and claim constructive unfair dismissal
  • Indirect discrimination claims from job applicants and/or current staff- as a mandatory vaccination requirement will amount to a provision, criterion or practice that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic. Such indirect discrimination claims may be on the grounds of:
  • Disability– for example, some of the vaccines are not suitable for individuals with suppressed immune systems, an employee with certain allergies may be advised against vaccination due to the risk of anaphylaxis and others may refuse the vaccine for mental health reasons or due to a phobia of needles.
  • Age– younger workers are less likely to be fully vaccinated as the government initially prioritised older individuals for vaccination. In addition, younger workers may be more cautious of being vaccinated due to the lower risk of hospitalisation, intensive care admission and death from COVID-19 and the slightly higher risk of blood clots from the vaccination.
  • Race– as vaccine take-up has been lower in areas with a higher proportion of ethnic minorities.
  • Religion or belief– some staff may have religious or moral objections to the vaccine, e.g. because embryonic tissue was used to test or develop the vaccine, and others may have a “philosophical” belief against vaccination, although the individual would have to show that their belief is “worthy of respect in a democratic society” which it may not be if it is particularly extreme?
  • Sex– women may wish to delay vaccination because they are trying to conceive (although the current guidance is that there is no need to avoid pregnancy after vaccination and no evidence that the vaccines have any effect on fertility or on the chances of becoming pregnant).

To defend an indirect discrimination claim, the employer would need to justify the mandatory vaccination requirement as a proportionate means of achieving a legitimate aim. Demonstrating a legitimate aim should be easy, as protecting the health and safety of staff, service users and third parties will very likely be a legitimate aim for employers. However, the employer may struggle to show that mandatory vaccination is a “proportionate” means of achieving that aim and that they could not achieve that aim in a less discriminatory way, e.g. via workplace COVID-secure measures, regular testing for frontline staff, handwashing and sanitiser etc. In addition, vaccinated individuals are still contracting COVID and it is currently unclear to what extent vaccination reduces transmission and how long the protection offered by vaccination will last.

As well as employment tribunal claims, employers may face other risks associated with mandatory vaccination, including:

  • Personal injury claims if an employee is compelled to receive the vaccine and suffers long-term, adverse side effects, although this risk should be minimal.
  • Data protection risks, as employees’ vaccination status will be “special category” data so need to be extremely careful about processing it, verifying its accuracy and retaining it.
  • Human rights issues- a vaccination requirement may be an unnecessary invasion of an individual’s Article 8 right to privacy, particularly when there are other, less invasive ways to minimise the risk of transmission in the workplace. In addition, employees who reject vaccination because of their religion or belief may also be able to rely on Article 9 (freedom of thought, conscience and religion).

The UK remains a signatory to the European Convention of Human Rights post-Brexit and UK courts must, as far as possible, interpret all legislation in a way that is compatible with the ECHR. It is also unlawful for public authorities (which includes public sector employers) to act in a way which is incompatible with the ECHR.

Some European cases have found that, although mandatory vaccination was an interference with the right to private life under Article 8, it was a proportionate means of achieving the legitimate aim to protect against diseases which could pose a serious risk to health. These principles might also apply to COVID but employers won’t want to be a test case!

  • Negative publicity, which could have a detrimental impact on business profitability, employee retention and recruitment.

So tread very carefully before trying to impose mandatory vaccinations!

WHAT PRACTICAL STEPS SHOULD AN EMPLOYER TAKE IF IT STILL WANTS TO INTRODUCE MANDATORY VACCINATIONS?

  • Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the COVID-secure guidelines already in place.
  • Consult with workplace representatives or trade unions.
  • Regularly review the vaccination requirement as the current mass vaccination programme progresses.

Consider how to implement this:

  • If you want to add this to existing employment contracts, you would need employees’ agreement.
  • If not, you would either have to unilaterally impose the change or terminate and offer re-engagement on the new terms. Both options carry significant risks, particularly when the change is so controversial, and taking account of the potential human rights and discrimination issues.
  • Introducing a contractual vaccination requirement for new employees will potentially be easier but will do little to secure widespread protection within the workforce as most employers anticipate low levels of recruitment for the foreseeable future.

CAN EMPLOYERS TREAT VACCINATED AND UNVACCINATED STAFF DIFFERENTLY?

Technically, a company can do whatever they wish to!

However, as with imposing mandatory vaccination, there are risks associated with treating vaccinated and unvaccinated staff differently, so businesses should tread carefully.

Employer could face similar claims to those associated with imposing mandatory vaccination, including constructive dismissal, indirect discrimination claims (as differences in treatment between vaccinated and unvaccinated staff would likely constitute a provision, criterion or practice) and bad PR/potential reputational damage

CAN EMPLOYERS WITHHOLD COMPANY SICK PAY FROM AN EMPLOYEE WITH COVID-19 WHO REFUSED TO BE VACCINATED?

If a company’s sick pay scheme is contractual and does not usually distinguish between different types of illness or the circumstances in which the illness was contracted, the company would have to pay full sick pay to an unvaccinated employee who was off ill with COVID unless they changed their sick pay scheme (which would need to be with consent…).

Some employers may have a contractual provision limiting an employee’s sick pay to SSP where their sickness or incapacity is due to their own recklessness or negligence, such as participation in dangerous sports. However, it is unlikely that such a clause would sufficiently cover this situation.

CAN EMPLOYERS WITHHOLD COMPANY SICK PAY FROM AN UNVACCINATED SELF-ISOLATING EMPLOYEE?

During a period of self-isolation where the employee is asymptomatic (e.g., following a notification from NHS Test and Trace), SSP will apply.

This scenario may not be covered by a contractual sick pay scheme (depending on its wording and contractual force). If not, employers will have greater freedom to withhold company sick pay from those who are self-isolating but have declined to be vaccinated (subject to the potential discrimination and human rights issues I’ve mentioned). However, this is likely to be controversial from an employee relations angle so needs careful thought.

SO WHAT IS THE BEST WAY FORWARD?

As with most aspects of employment law, it is best to take a carrot rather than a stick approach, namely encouraging and supporting staff to be vaccinated rather than mandating it. There is useful guidance in Public Health England “COVID-19 vaccination: guide for employers”, including ways to encourage vaccination uptake by offering paid time off to attend vaccination appointments, ensuring that staff are paid their usual rate if they are off sick with vaccine side effects, sharing information about vaccination so that staff can make informed decisions, appointing vaccination “champions” and encouraging senior staff to share their vaccination experiences.

For information and support in relation to vaccination status or any other Employment matters, contact Sarah Lee at sarah.lee@bpe.co.uk or call 01242 248261

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