Policies on mandatory vaccinations– are they permissible?

The government has made it clear that vaccinations for COVID-19 are not mandatory, however, with increasing discussion as to whether employers can make vaccinations mandatory for employees returning to the office and job applicants, we explore why this approach in particular might not be a viable or sensible option, and recommend less risky alternatives.

Risks of making vaccinations mandatory:

Indirect discrimination

Requiring employees and job applicants to be vaccinated is likely to be a provision, criterion or practice that places individuals with protected characteristics at a disadvantage compared to those who do not share the protected characteristics, for example:

Age - The government’s approach to vaccinations is based on age and clinical risk factors. Allowing only those who are vaccinated to go into the workplace could potentially lead to claims of discrimination by younger employees.

Disability – Vaccines are not suitable for everyone e.g., those with suppressed immune systems. In addition, there are individuals who have severe allergies and those who suffer with mental health illnesses, both of which could prevent them having the vaccine.

Pregnancy or sex – The guidance has so far advised against pregnant woman having the vaccine. In addition, woman who are trying to conceive may wish to delay having the vaccine.

Religion or belief – Some religions reject medicines, including the use of vaccinations, on theological grounds.

Assault and battery

Employers cannot force employees to consent to a vaccination and to do so could amount to the criminal offences of assault and battery.

Breach of trust and confidence

Requiring an employee to be vaccinated without their consent as a condition to providing them with work could amount to a repudiatory breach of contract. There is then the risk of employees with over two years service, resigning in response to the breach (constructive dismissal) and issuing a claim for unfair dismissal.

Changing contract terms

A contractual requirement making vaccinations mandatory for existing employees will likely be difficult as it would require consent, a requirement to impose it unilaterally or a dismissal and re-engagement. The latter two carry risks in respect of breach of contract and unfair dismissal, if eligible. Many employers are, however, making it a condition of employment for new employees – although this is not likely to be useful until all adults have been offered the vaccine.  

Data protection issues

Information confirming whether an employee or job applicant has received a vaccine is classed as “special category data” and is subject to additional protections. The Information Commissioner’s Office has confirmed that employers can rely on their health and safety duties for processing medical data, if it is “necessary and proportionate”. Therefore, employers must consider why they are collecting the data on vaccinations and whether there is a less intrusive way of achieving the aim.

Detrimental treatment

Where employees continue to work from home as an alternative to having the vaccine, employers should ensure that those individuals do not suffer a detriment for doing so. Likewise, those who have been vaccinated may consider it a detriment to be required to attend the office. Employers must manage this situation carefully to avoid a breakdown of employee relations.

Reputational risk

Employers may face negative publicity if they impose a mandatory vaccination requirement.

Can a mandatory vaccination policy ever be justified?

Currently, to justify a vaccination policy that is seemingly discriminatory towards individuals who hold a particular protected characteristic, employers would need to show that the policy can be objectively justified as a proportionate means of achieving a legitimate aim (trying to reduce transmission in the workplace to ensure health and safety of employees and third parties). Proportionality requires employers to demonstrate that measures taken (mandatory vaccination policy) were “reasonably necessary” and there was no alternative option. This will be difficult for employers when we already have in place COVID-secure guidelines and regular testing which could be deemed a less discriminatory way of ensuring health and safety.

How should employers approach vaccinations?

-    Communication engenders trust and confidence and will be key to implementing policies and procedures designed to get employees back to the workplace. Employers should consult with and take on board the views of employees when preparing such policies and procedures. Employers must also ensure policies do not indirectly discriminate against employees who are not vaccinated. Note - consultation with employees may also place an employer on notice of disabilities that had not previously been disclosed. Employers will then need to consider whether any reasonable adjustments should be made.  

-    Promote the uptake of the vaccine by discussing with employees the benefits and offering support to employees who have concerns. This may involve providing access to fact-based information from healthcare professionals and the government in line with health and safety duties.

-    Allow employees paid leave to attend a vaccine appointment and offer incentives for having the vaccination e.g. one-off bonus or gift cards. If temporarily unwell following their vaccination, employees should receive full pay for sick days – this would need to be restricted to ensure it was not abused e.g. within a week of the vaccine.

-    Maintain COVID-secure measures for all employees and conduct regular risk assessments. This will ensure that employees are confident they will be safe in the workplace. The effect of transmission following vaccination is still unknown, therefore, COVID-secure measures should remain in place until the government tells us otherwise. Employers should make it clear that those who choose to breach the measures will be subject to disciplinary procedures.

-    Many businesses are now re-assessing how they work and increasingly we are seeing companies moving towards more flexible working practices. We also expect there to be an increase in requests for flexible working in the coming months. Where home working or working flexible hours has worked effectively over the last year, it would be difficult for employers to now argue that working from home is not viable. Employers should also be aware that that imposing policies such as requiring all employees to be vaccinated, will be difficult to justify where its employees now spend the majority of their time working from home.