29 July 2021 #Employment
So called 'Freedom Day' was justified by the government in part because of the huge success of the vaccine roll-out in England.
How much reliance can employers put on vaccination status when planning a safe return to the physical workplace?
Should I ask all my staff whether they’ve been vaccinated?
As an employer, there may be circumstances when it’s appropriate for you to consider the vaccination status of your staff – but you shouldn’t just assume you have a right to know.
You are dealing with 'special category' data under UK GDPR and the ICO has stated that collecting information about vaccination status on a 'just in case' basis is unlikely to be lawful. The same is true for using it in a situation where you can achieve your purpose by other means – which raises the question, how essential is this information to the risk assessment you need to conduct in order to comply with your health and safety legal obligations?
The government’s Working Safely guidance does not put vaccination status at the heart of these risk assessments – in fact, it’s glossed over entirely. The Equality and Human Rights Commission have also warned against blanket policies requiring staff to be vaccinated because of discrimination risks. The exception will be where legislation requires this approach – so, currently just in certain healthcare settings.
For all other employers, you will need to work quite hard to justify any blanket requests for this information or compulsory vaccination policies in the workplace. You will need to identify your lawful basis and special category data processing condition, a clear purpose and a good argument as to why this is proportionate.
You will also need to think through the implications if staff refuse to disclose this information to you – what action can you reasonably take? There will be several legal risks to consider when attempting to discipline or dismiss staff as a result.
If I don’t ask everyone upfront, when might it be appropriate to ask specific individuals if they’ve been vaccinated? And how do I handle the conversation?
We are seeing a range of circumstances emerge that are triggering employers to conclude there is specific need to dig deeper on this question – for example, because of an employee’s reluctance to return to the workplace, or a key customer’s stance towards its workforce and people coming into its environment.
The way forward will be very dependent on the facts of the situation, but the basic principles will be to: encourage voluntary disclosure, limit the number of people who know, cover off all your data protection compliance issues and think through other measures that might mitigate or eliminate the perceived need for this information.
If I find out someone is unvaccinated, do I need to treat them differently?
Measures that clearly signal to others who is vaccinated and who isn’t are not advisable – for example, making only non-vaccinated staff wear masks. They risk creating a divisive, two-tier workforce and implicitly disclose sensitive personal data. If the reason someone is unvaccinated qualifies as a disability (or relates to another protected characteristic), you could end up with potential harassment claims if they experience hostility on that basis.
However, it may be necessary to consider steps in your risk assessment to protect unvaccinated staff. And if there is an underlying disability involved, the duty to make reasonable adjustments will also come into play. These are potentially very knotty problems, and the best approach will depend on the facts – but the hazy concepts of reasonableness and proportionality are likely to be important factors.
How do I reassure staff members who may feel nervous about working alongside unvaccinated colleagues?
No workplace should be relying on vaccination status as the silver bullet that is going to make everyone safe. We know from the science that vaccinated people can still catch and transmit covid-19. The government’s Working Safely guidance is still very focused on maintaining the kinds of non-invasive, practical measures that reduce the spread of the virus – ventilation, cleaning, space, masks. These may not be mandatory anymore, but many of these steps are still 'expected and encouraged' – and effective.
Your risk assessment and communication should be a collaborative dialogue with staff, so that any concerns can be addressed where feasible. But, irrespective of whether people believe vaccination status is the most important factor, your emphasis must be more balanced – incorporating a range of measures. The science and the law seem to require this – and doing so will assist you in countering suggestions that your workplace poses a serious and imminent danger to health and safety (which is the basis of potential health and safety detriment and unfair dismissal claims).
This is unchartered territory for everyone but familiarising yourself with your basic health and safety legal duties, your data protection obligations and the guidance from government will give you some tools to approach your risk assessment with confidence.
For help responding to the inevitable nuances and challenges that crop up along the way, please contact the employment team or watch our latest webinar: COVID-19 - The next chapter for employers