Posted on 24.2.21
With the Government rolling out the COVID-19 vaccination program across the UK, many organisations are starting to ask questions as to what that means for them as employers.
To help you understand your options and responsibilities in these uncertain times, we have put together some advice to clarify what employers need to know before making any decisions around the vaccine.
What are employers legally required to do to keep their employees safe?
Every employer has a duty of care towards their employees, explained in the Health and Safety Act 1974. This act requires employers to ensure health, safety and welfare of their employees at work, so far as is reasonably practicable.
In May 2020, the UK Government released guidelines as a result of the pandemic, requiring all employers to make sure their workplaces were COVID-19 secure, to ensure the health and safety of their staff. These guidelines may well be updated as the vaccination programme is rolled-out, so it’s important to check these should any issues arise.
Can an employer ask their employees to get vaccinated?
Currently there is no law in place making the COVID-19 vaccine compulsory, so no one can be forced to be vaccinated.
Many employers look for the best ways to protect their staff and will be keen to get their workforce vaccinated to minimise the risk of COVID-19 spreading, and to get people back into the workplace. However, at the moment the vaccine is not commercially available, so we have no control over access to it and due to it not being compulsory by law an employer cannot demand that their staff must have the vaccine.
Employers in certain sectors may be able to issue reasonable instructions that their employees should be vaccinated, for example in health or social care settings.
Discrimination issues to be considered
There are various discrimination issues that can arise if an employer isn’t careful about encouraging their employees to get the COVID-19 vaccine. Employers need to be careful when looking into encouraging their workforce to get vaccinated as it is unchartered territory and no one should be discriminated against. Here are a few areas to consider when thinking about making changes to employment contracts and policies.
The vaccine is being given to the elderly and vulnerable first meaning that employers cannot treat younger employees less favourably, as they will not yet have had access to the vaccine.
Some people will not be able to get vaccinated as it may not be safe for them to do so because of their existing disability or health issues.
Experts have not yet made it clear whether the vaccine is safe to be given to pregnant women, so employers should not expect any of their pregnant employees to get the vaccine, unless they wish to do so.
Religion or belief discrimination
Some employees may legitimately object to being vaccinated because of their religious or philosophical beliefs.
Employment contracts and policies
As highlighted above employers are already under s strict duty to ensure their workplaces are COVID-19 safe. In light of the vaccination program, employers may consider looking into creating COVID-19 policies and making changes to contractual terms. However, before making any changes and decisions the employers should consider to:
- Carry out a thorough risk assessment;
- Consult with Unions or any other work representatives, including health & safety specialists to ensure wider implications are reviewed
- Discuss and research all available options, which may include gaining an insight from staff as to their thoughts, before taking action
- Plan a clear communication programme
Employers should ensure their risk assessments are reviewed with the vaccine in mind. The risk assessment will need to cover the possibility that not all employees will agree (or indeed are able) to be vaccinated and alternative measures may therefore need to be put in place to cover all bases and minimise the risk to the health and safety of the wider workforce. This is a new situation that everyone is in, so it is important for employers make well informed decisions.
What happens if an employee refuses to be vaccinated?
This is a very new and sensitive issue and we have yet to see how the Tribunals deal with any related claims.
Employers will need to tread very carefully and consider a variety of factors before disciplining or dismissing an employee, including:
- Is the vaccination requirement a reasonable management request?
- Has a risk assessment been carried out?
- What are the possible discrimination issues?
- What is the employee’s reason for refusal?
- How does the refusal affect the company?
How does this affect data processing?
In order for employers to be able to execute their health and safety duty, they will want to understand who in their workforce has been vaccinated to be able to assess their situation correctly, which will involve processing personal and sensitive category data. This means that the employers will also need to ensure their data protection processes and policies are up to date, and fit for purpose to ensure data protection compliance.
We ourselves are receiving updated information on a regular basis and will be keeping this page as current as possible. If you cannot find the information you need here, please contact our employment team or call 0161 930 5151 with more details (please note we are receiving a high number of enquiries at this current time).