02 December 2021 #Employment
On Saturday 27 November 2021, it was announced that the UK will bring in new measures to protect against COVID-19 following the detection of the Omicron variant. This also comes after other European countries impose further lockdowns and restrictions as the winter wave of COVID-19 continues to worsen.
In a previous article we discussed that, from 11 November 2021, it became a legal requirement for those working in a Care Quality Commission (CQC) registered care home for adults in England to provide proof that they have had two doses of a COVID-19 vaccine.
In light of increased measures and restrictions, employers from different industries are looking at ways to protect their employees and businesses in the fight against COVID-19. However, whilst for the majority of sectors vaccination remain voluntary, employers should tread carefully.
Can employers encourage employees to get vaccinated?
Yes. Under the Healthy and Safety at Work Act 1974, employers are required to take steps to reduce workplace risks and encouraging employees to protect themselves and their colleagues by getting the vaccination may reduce the risks.
The government released guidance here, which actively encouraged employers to encourage their employees to get vaccinated.
In addition to this, ACAS has also recently released guidance supporting employers in having discussions with their employees regarding vaccination.
Can employers enforce a mandatory vaccination programme?
Mandating vaccines for employees has never been tested in UK law. The key issues that employers should be aware of are the risks associated with dismissing employees who refuse to have the vaccine and have over two years’ service. Also, even for employees who do not have two years’ service, they may be faced with discrimination claims from employees who have a protected characteristic.
An employer will need to consider whether they have a fair reason to dismiss and should carry out a risk assessment to determine the most reasonably practicable way of mitigating the risk of COVID-19. It may also be the case that the vaccine is required for entry to some overseas locations and if an employee’s role specifically requires travel to those locations then the vaccine may be necessary.
Employers should also take care to consider whether there are any exceptions for medical or belief reasons as to fail to do so may result in discrimination claims.
Can employers require all new starters to be vaccinated as a condition of their employment?
As new employees will not have the required two years length of service to bring a claim for unfair dismissal, then this may be less risky. However, new recruits still have the right not to be discriminated against because of their protected characteristics and therefore any such recruitment policy will need to give careful consideration to those employees who may not be vaccinated for a particular reason (e.g. for medical or belief reasons).
Can employers ask an employee to share details about their vaccination status?
Potentially yes, but to do so would involve collecting ‘special category data’ and so employers will have data protection issues to consider.
The Information Commissioner’s Office (ICO) has published advice for organisations who are collecting vaccination status data.This confirms that the collection of the data must be necessary and relevant for a specific purpose.
This is a new and developing area of law and employers must ensure they are carefully considering such developments. If employers have any concerns or want more detailed advice or guidance then please contact our Employment Team.