Coronavirus Vaccination and Employment

This note considers the workplace issues that may arise regarding vaccination against COVID-19, including:

• Whether employers can require mandatory vaccination.
• Whether employers can fairly dismiss an employee who refuses to be vaccinated.
• The potential discrimination, human rights, health and safety, and data protection issues.

Government policy

Could vaccination become mandatory in the UK?

The government has not yet legislated for the COVID-19 vaccine to be mandatory for anyone. However, this is due to change in relation to care homes in England.

Vaccination as a condition of deployment in care homes

On 16 June 2021, the government published its response to a consultation on making vaccination a condition of deployment in care homes. The response confirms that the government will bring forward regulations to require all Care Quality Commission (CQC) regulated service providers that provide accommodation for persons who require nursing or personal care, in care homes in England, to allow entry to the premises only to persons who can demonstrate evidence of having had a complete course of an authorised COVID-19 vaccine, or evidence that they are exempt from vaccination.

There will be a 16-week grace period from when the regulations come into force, to enable workers impacted by the requirement to receive both doses of the vaccine. The requirement will apply indoors only and will include all persons who enter a care home, regardless of their role, subject to certain exclusions.

The requirement will apply to any professionals visiting a care home, such as healthcare workers, tradespeople, hairdressers, beauticians and CQC inspectors. The following will be excluded from the requirement:

• Persons who are medically exempt, including those with an allergy or condition that the Green Book lists. Guidance will provide more detail about medical exemption from the requirement.
• Residents of the care home.
• Friends or relatives of residents who are visiting the care home.
• Persons providing emergency assistance or urgent maintenance in the care home.
• Persons under the age of 18.
• Clinical trial participants.
• Persons who work only in the outdoor surrounding grounds of the care home premises.

On 24 March 2021, the Prime Minister gave evidence to the House of Commons Liaison Committee, in which he responded to a question about whether vaccination certification was “compatible with a free society such as ours”. He suggested that the concept “should not be totally alien to us because, after all, when you are entrusted with the care of a patient, as a surgeon, you are expected to have a vaccination against hepatitis B”, and that it would be “wholly responsible for care home companies to think of requiring vaccinations”

Vaccination as a condition of deployment in healthcare and the wider social care sector

On 16 June 2021, the government published its response to the consultation on making vaccination a condition of deployment in care homes. Within its response, the government stated that there will be a consultation “in the coming weeks” on making COVID-19 and flu vaccination a condition of deployment in healthcare and the wider social care sector. Previously, also on 16 June 2021, it was reported that the government planned to open a consultation on requiring COVID-19 vaccination as a condition of employment for health service workers (see Legal update, COVID-19: vaccination expected to be made compulsory for care home staff).

Before that, there were reports on 15 April 2021 that some London NHS Trusts were preparing to make vaccination compulsory for workers.

Statutory position

There is currently no legislative power for the UK government to mandate COVID-19 vaccination, so it would require further primary legislation.

The government can make regulations to prevent, protect against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales (section 45C, Public Health (Control of Disease) Act 1984 (PHA 1984)).

A mandatory vaccination requirement could also amount to a breach of Articles 8 and 9 of the European Convention on Human Rights (ECHR) (see Human rights issues).

It is possible, however, that the government could introduce restrictions on the movement of unvaccinated people under section 45B of the PHA 1984, or other countries could refuse them entry, which could affect business travel.

Individuals the government specifically advises to get the vaccine

The government specifically recommends vaccination for the following individuals:

• Adults living or working in a care home for the elderly.
• Frontline healthcare workers.
• Frontline social care workers.
• Carers working in domiciliary care looking after older adults.
• Those aged 65 years and over.
• Younger adults with long-term clinical conditions (see Clinical conditions list).
• Adults in the clinically extremely vulnerable (CEV) group (see Can an employer require employees to be vaccinated against COVID-19?).

Clinical conditions list

The government recommends vaccination for individuals under 65 with long-term clinical conditions. Individuals are on the clinical conditions list where they have:

• A blood cancer (such as leukaemia, lymphoma or myeloma).
• Diabetes.
• Dementia.
• A heart problem.
• A chest complaint or breathing difficulties, including bronchitis, emphysema or severe asthma.
• Kidney disease.
• Liver disease.
• Lowered immunity due to disease or treatment (such as HIV infection, steroid medication, chemotherapy or radiotherapy).
• Rheumatoid arthritis, lupus or psoriasis.
• Had an organ transplant.
• Had a stroke or a transient ischaemic attack (TIA).
• A neurological or muscle wasting condition.
• A severe or profound learning disability.
• A problem with their spleen, for example sickle cell disease, or their spleen has been removed.
• A BMI of 40 or above.
• A severe mental illness.

Clinically extremely vulnerable employees

While the government specifically recommends (and prioritises) vaccination against COVID-19 for CEV individuals, vaccination may not be suitable in every case. For example, many CEV individuals have some degree of immunosuppression or are immunocompromised and may not respond as well to the vaccine (DHSC: Independent report: Priority groups for coronavirus (COVID-19) vaccination: advice from the JCVI (30 December 2020) (JCVI priority groups advice).

Since 31 March 2021, CEV employees have no longer been advised to shield in England and Wales (see Practice note, COVID-19: Managing COVID risk in the workplace: Clinically extremely vulnerable employees: workplace issues). However, they were previously required to shield even after vaccination.

For details of the individuals classed as CEV in England, see Practice note, COVID-19: Managing COVID risk in the workplace: Individuals classed as “clinically vulnerable” in England.

Circumstances where vaccination may not be suitable

Individuals with immune system disorders may not respond well to the vaccine (PHE: COVID-19 vaccination: guide for healthcare workers). Further, a very small number of people cannot have the vaccine, such as those with severe allergies.

Women of childbearing age, pregnant or breastfeeding

While there are no known risks for women who are vaccinated against COVID-19 during any stage of pregnancy or shortly before conception, the vaccine has not been tested on pregnant women. Previous government advice was that:

• Pregnant women should not routinely receive the vaccine until more information is available.
• If a woman finds out she is pregnant after she has started a course of the vaccine, she should complete her pregnancy before finishing the recommended schedule.

However, on 16 April 2021, the Joint Committee on Vaccination and Immunisation (JCVI) issued a Press release, JCVI issues new advice on COVID-19 vaccination for pregnant women advising that pregnant women should be offered the vaccine at the same time as the rest of the population, based on their age and clinical risk group. It referred to real-world data from the United States showing that around 90,000 pregnant women had been vaccinated, mainly with the Pfizer-BioNTech and Moderna vaccines, without any safety concerns being raised. Based on that data, the JCVI advise that it is preferable that pregnant women are offered those vaccines where available. There is no evidence to suggest that other vaccines are unsafe for pregnant women, but more research is needed.

Guidance from PHE was subsequently updated on 23 April 2021 to refer to the JCVI advice, in particular:

• The JCVI has advised that pregnant women should be offered vaccines at the same time as people of the same age or risk group.
• Pfizer and Moderna vaccines are the preferred vaccines for pregnant women of any age who are coming for their first dose.
• Anyone who has already started vaccination and is offered a second dose while pregnant, should have a second dose with the same vaccine unless they had a serious side effect after the first dose.
• There is no need to avoid pregnancy after vaccination. There is no evidence that the vaccines have any effect on fertility or on the chances of becoming pregnant.
• The JCVI has recommended that the vaccines can be received whilst breastfeeding. This is in line with recommendations from the USA and the World Health Organization.

Individuals for whom the vaccine may not be as effective

Individuals with immunosuppression may not make a full immune response to vaccination against COVID-19 (PHE: COVID-19 vaccination: information for healthcare practitioners).

Individuals suffering from “long COVID”
Individuals experiencing prolonged COVID-19 symptoms (”long COVID”) may need to defer vaccination to avoid incorrect attribution of any change in the individual’s underlying condition to the vaccine (PHE: COVID-19 vaccination: information for healthcare practitioners).

Measures to increase vaccine uptake

On 22 February 2021, the government advised that although there was a 90% uptake of the first dose of the vaccine by those aged 70 and over, there were early signs of lower vaccine uptake in lower income and some ethnic minority groups (Cabinet Office: COVID-19 Response: Spring 2021 (Roadmap)). On 15 February 2021, it was reported that only two-thirds of social care staff and four-fifths of NHS workers had received a vaccine, despite it being offered to all of them (Independent, Covid: Just two-thirds of social care staff and four-fifths of NHS workers have been given vaccine, 15 February 2021).

The government is taking steps to address vaccine concerns through a new Vaccination Equalities Committee, which brings together representatives from public health, local authorities, voluntary organisations and faith groups in an effort to understand and find ways to overcome the specific barriers facing different communities. For further information, see DHSC: UK COVID-19 vaccine uptake plan.

The government has determined to make vaccination mandatory for workers in care homes (see Could vaccination become mandatory in the UK?).

Some employers have agreed to promote a positive safety message and signpost staff to NHS providers in a bid to improve the UK’s vaccine uptake (see Legal update: COVID-19: Employers join pledge to promote vaccine uptake amongst staff).

COVID status certification review

The government carried out a review into whether “COVID status certification” could play a role in reopening the economy, reducing restrictions on social contact and improving safety (Cabinet Office: COVID-19 Response: Spring 2021 (Roadmap)). This included assessing to what extent certification would be effective in reducing risk, and the potential uses to enable access to settings (which could include workplaces) and a relaxation of the COVID-secure requirements.

The EHRC expressed concerns that COVID-19 vaccination certificates could create a two-tier society and could discriminate against marginalised groups where the take-up of the vaccine is lower, as well as those who cannot be vaccinated for medical reasons. The EHRC chair said that if certificates are introduced, this must be for a limited period of time and regularly reviewed by Parliament to ensure they are proportionate (see Legal update, COVID-19: vaccine passports could create “two-tier society”, EHRC warns).

On 6 July 2021, the government announced its decision not to mandate the use of COVID status certification as a condition of entry for visitors to any setting at the present time (see Legal update, COVID-19: spring 2021 roadmap review social distancing and COVID status certification reports published). While there would be a public health benefit, it was judged that the burden on business, and on individuals who have not had the opportunity to be fully vaccinated, would be disproportionate to the public health benefit at this stage of the pandemic. However, it is possible that certification could provide a means of keeping events going and businesses open if the country is facing a difficult situation in autumn or winter. Therefore, the government will keep the wider application of certification under consideration.

Can an employer require employees to be vaccinated against COVID-19?

Acas advises employers to encourage and support their staff without making vaccination a requirement, for example, by offering paid time off to attend vaccination appointments (Acas guidance). The Acas guidance previously acknowledged that employers may need to make vaccination mandatory where it is necessary for an employee to do their job, for example, where they are required to travel overseas to countries which require visitors to be vaccinated. However, this wording was removed by the 25 February 2021 update to the Acas guidance.

In April 2021, the EHRC warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone as well as the discrimination risks (see Legal update, COVID-19: vaccine passports could create “two-tier society”, EHRC warns, Circumstances where vaccination may not be suitable and Potential discrimination issues).

In the absence of vaccination becoming a legal requirement (see Could vaccination become mandatory in the UK?), an employer cannot force an employee to be vaccinated without their consent. Vaccination without consent could amount to the criminal offences of assault and battery. However, an employer could decide to prevent unvaccinated employees from entering the workplace, or restrict their duties (see Can an employer prevent unvaccinated employees from entering the workplace?). This could in turn adversely impact an unvaccinated employee’s pay (see What is an employee entitled to be paid if they refuse to be vaccinated?).

Even so, a survey by HRLocker in January 2021 revealed that 23% of employers planned to make vaccination mandatory, and 49% of recruiters admitted they would prioritise vaccinated applicants during recruitment (see Legal update, COVID-19: 23% of employers to mandate vaccinations for staff). 58% of managers polled by the Chartered Management Institute in March 2020 believed that vaccination should be mandatory (see Majority of managers think firms should make Covid jabs mandatory, poll finds, peoplemanagement.co.uk, 22 March 2021). In June 2021, the BBC reported that a number of organisations were mandating that staff are vaccinated before they can return to the office (see Bloomsbury staff must be vaccinated before office return, bbc.co.uk, 22 June 2021).

In July 2021, it was reported that a number of employers, including Amazon, Sky and Three UK, have joined a list of employers making a public commitment to encouraging vaccinations among staff (see More employers join push to get staff vaccinated, Personnel Today, 12 July 2021). IKEA and Asda, among others, previously made the commitment in May 2021. HR software has already been launched to help employers monitor which workers have had the vaccine (see Legal update, COVID-19: UK employers setting up systems to track which workers have been inoculated against COVID-19).

Vaccination is a more significant issue for employers in high-risk sectors, such as the care sector, where employees work with vulnerable individuals. Following consultation the government has determined to make vaccination mandatory for workers in care homes (see Could vaccination become mandatory in the UK?).

Key considerations

An employer considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:

• Vaccination is not suitable for everyone (see Circumstances where vaccination may not be suitable).
• Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal (see Practice note, Constructive dismissal).
• A mandatory vaccination requirement could indirectly discriminate against employees with certain protected characteristics and breach Article 8 and 9 of the ECHR (see Potential discrimination issues and Human rights issues).
• Currently, private vaccination is not available. Individuals must wait their turn, in order of priority, to be offered vaccination. For details of the current order of priority, see JCVI priority groups advice: Phase 1: direction prevention of mortality and supporting the NHS and social care system. Allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees, although both direct and indirect age discrimination can be justified (see Could a mandatory vaccination requirement be justified as a proportionate means of achieving a legitimate aim?).
• Employers may find it difficult to justify a mandatory vaccination requirement on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual contracting COVID-19, the extent to which vaccination reduces transmission is still under review. (PHE states that the evidence on this is “less clear”, but that vaccination shortens the viral shedding period so it is “less likely” that vaccinated workers will pass on COVID-19 to others (Guide for healthcare workers).) Further, it is unknown how long the protection offered by vaccination will last. The current advice is clear that vaccination is not a substitute for workplace COVID-secure measures, which employers must continue to comply with. (See Does an employer have a health and safety obligation to ensure its employees are vaccinated? and Do vaccinated employees still have to follow social distancing guidelines and take protective measures in the workplace?.)
• Imposing a mandatory vacation requirement could result in negative publicity for the employer which could have a detrimental impact on business profitability, employee retention and recruitment (see Reputational risk).
• There is a very small risk that vaccination could have long-term, adverse side effects for some individuals, which may concern a cautious employer. An employee who was compelled to receive the vaccine and who suffers an adverse reaction may attempt to bring personal injury proceedings against the employer. For information on potential waivers in this respect, see Should employers require employees to sign a vaccination waiver?.
• Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required (see Practice note, COVID-19: Managing COVID risk in the workplace: Employer duty to consult on health and safety).
• The data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy and retaining that data (see Data protection implications of retaining vaccination data in relation to employees and workers).
For further information on the issue of mandatory vaccination, see Blog post, Can employees be prevented from attending work or restricted in their duties until they provide proof of vaccination and, if so, what are they entitled to be paid?.

Alternatives to mandatory vaccination

In view of the risks of a mandatory vaccination programme, it is advisable for employers to consider:

• How best to achieve voluntary vaccination within their workforce.
• What other alternative measures they could introduce to reduce the risk of COVID-19 in the workplace.
Collective consultation with employee or trade union representatives in addition to a sensitive internal communications plan may contribute towards voluntary take-up of the vaccine.

Employers should inform staff of the available information on the potential advantages and disadvantages of vaccination to assist them in making an informed decision. This is in accordance with employers’ implied duty to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace and system of work (see Practice note, Implied terms in employment contracts: Health and safety duties).

Alternative measures could include regular testing for frontline staff, and regular health and safety reviews to ensure that the employer is up to date with, and properly implementing, the COVID-secure guidelines for its particular industry (see Practice note, COVID-19: Managing COVID risk in the workplace: COVID-19 Secure guidelines (working safely)). Employers may also wish to consider allowing an employee to work from home where possible or temporarily changing their role or responsibilities to minimise risk in the workplace as far as possible.

For a consideration on whether an employer can prevent an unvaccinated employee from entering the workplace, see Can an employer prevent unvaccinated employees from entering the workplace?.

Potential discrimination issues

Indirect discrimination

A mandatory vaccination requirement for employees or job applicants is likely to amount to a provision, criterion or practice (PCP) that puts individuals with a protected characteristic at a particular disadvantage compared with others who do not share that protected characteristic, contrary to section 19 of the Equality Act 2010 (EqA 2010) (see Practice note, Indirect discrimination).

A vaccination requirement could put employees with one of the following protected characteristics at a particular disadvantage:

• Age. The government prioritised older individuals for vaccination. As private vaccination is currently not available, employees outside of a priority age group are disadvantaged compared with those that are. 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. (For the order of priority, see JCVI priority groups advice: Phase 1: direction prevention of mortality and supporting the NHS and social care system and for the current guidance on vaccination and blood clotting, see Guidance, COVID-19 vaccination and blood clotting)
• Disability. Some of the vaccines in production are not suitable for certain individuals with suppressed immune systems (see Clinically extremely vulnerable employees). An employee with certain allergies may also be advised against vaccination due to the risk of anaphylaxis. Other employees may refuse the vaccine for mental health reasons, or due to a phobia of needles.
• Pregnancy or maternity. Current government advice is that pregnant women should be vaccinated, however, previously, the advice was that pregnant women should not be vaccinated. The change in advice may lead to some pregnant employees being cautious about getting vaccinated (see Women of childbearing age, pregnant or breastfeeding). Indirect discrimination does not apply to the protected characteristic of pregnancy and maternity (section 19(3), EqA 2010). However, a woman who is disadvantaged by her employer’s vaccination policy due to pregnancy or maternity could bring an indirect sex discrimination claim.
• Sex. Women may wish to delay vaccination because they are trying to conceive. A December 2020 survey of 55,000 people found that the group most likely to refuse vaccination were 18 to 34-year-old women, with many citing worries about fertility (see Coronavirus latest: Young women are the unlikely new face of vaccine resistance, inews.co.uk, 6 January 2021). Current guidance is that there is no need to avoid pregnancy after vaccination and there is no evidence that the vaccines have any effect on fertility or on the chances of becoming pregnant (see Women of childbearing age, pregnant or breastfeeding).
• Race. Vaccine take-up in previous national vaccination programmes has been lower in areas with a higher proportion of ethnic minorities. Research by SAGE published in December 2020 refers to the UK Household Longitudinal study, which showed marked differences between different ethnic groups in willingness to receive the COVID-19 vaccine. The research found that Black ethnic groups were most likely to be hesitant, followed by those of Pakistani or Bangladeshi ethnic origin. “Other white” ethnic groups were more hesitant than those of “white UK” and “white Irish” ethnicity. The greater hesitancy in minority ethnic groups was due to low confidence in the vaccine, distrust, access barriers, inconvenience, socio-demographics and lack of communication from trusted providers (see SAGE Research and analysis: Factors influencing COVID-19 vaccine uptake among minority ethnic groups (17 December 2020)). Another study showed that black people were less likely than any other ethnic group to have been vaccinated, with statistics showing that by April 2021 only 64% of black over-50s had been vaccinated compared with 93% of white people of the same age (see Legal update, COVID-19: vaccine uptake in black over-50s only 64% compared with 93% of white peers).
• Religion or belief. It possible that the protected characteristic of religious or philosophical belief could protect certain religious or moral objections to the vaccine (see Practice note, Religion or belief discrimination). For example, gelatine derived from pigs is often used in mass-produced vaccines. This may be a concern for Muslim, Hindu, vegan or vegetarian employees. Although there is no gelatine in the COVID-19 vaccines currently available, shark liver oil is being considered as an adjuvant for one of the new vaccines. Other employees may reject the vaccine because embryonic tissue was used to test or develop the vaccine. For further information on the use of foetal material and animal products in the COVID-19 vaccines, see PHE: Guide to the use of human and animal products in vaccines.
• Other employees may have a strongly held belief that vaccines are harmful to public health (anti-vaxxers). It is unlikely that this will amount to a protected belief under the test set out in Grainger v Nicholson [2010] IRLR 4 which includes requirements that a belief:
• attains a certain level of cogency, seriousness, cohesion and importance;
• is worthy of respect in a democratic society;
• is not incompatible with human dignity; and
• does not conflict with the fundamental rights of others.
• (See Practice note, Religion or belief discrimination: Philosophical belief.) However, there is no case law specifically on this point.
• For further discussion on whether an objection to the COVID-19 vaccines could amount to a philosophical belief, see Blog post, Can refusing to be vaccinated be protected on religion or belief grounds under the Equality Act 2010?.
Therefore, employers need to ensure that any mandatory vaccination requirement is justifiable as a proportionate means of achieving a legitimate aim (see Could a mandatory vaccination requirement be justified as a proportionate means of achieving a legitimate aim?), or is couched in terms which allow for exceptions.

Even where an employer does not mandate vaccination, it should ensure that its workplace policies do not indirectly discriminate against unvaccinated employees. For example, it is possible (depending on a whole range of factors, including the efficacy of the vaccine) that employers could relax COVID-secure protective measures only for vaccinated staff (although this is likely to take some time given the likely period for roll-out of a vaccination programme). For employees who cannot be vaccinated, it may be appropriate to continue with appropriate protective measures (to protect both them and any unvaccinated colleagues, patients, clients or customers) or consider redeployment.

Could a mandatory vaccination requirement be justified as a proportionate means of achieving a legitimate aim?

An employer may be able to justify a vaccination policy that is ostensibly discriminatory against a particular protected characteristic if it can show that its policy can be objectively justified as a proportionate means of achieving a legitimate aim (section 19(2)(d), EqA 2010) (see Practice note, Indirect discrimination: Objective justification).

The burden is on the employer to show justification. It must show that:

• It was pursuing an identified legitimate aim (see Practice note, Indirect discrimination: Legitimate aim).
• The measures taken to achieve that aim were appropriate and proportionate (see Practice note, Indirect discrimination: Proportionality).
Establishing a legitimate aim is likely to be the easier part of the test for employers in this situation. Protecting the health and safety of staff, service users and third parties will very likely be an uncontroversial legitimate aim for employers.

The employer must show that its actions actually contribute to the pursuit of the legitimate aim. While there is currently insufficient evidence to support the position that vaccination prevents transmission in the workplace, this is likely to be established in the future. In any event, it would be difficult to criticise an employer for trying to reduce transmission in its workplace by encouraging vaccination, even if it was subsequently shown that this had little or no impact.

To establish that a vaccination policy was a proportionate means of achieving its legitimate aim, an employer must demonstrate that the measures taken were “reasonably necessary” to meet the legitimate aim. However, it does not need to show that it had no alternative course of action. An employer’s actions will not be considered reasonably necessary if it could have used less discriminatory means of achieving the legitimate aim.

Proportionality may be a more difficult hurdle for employers at the current time. Compliance with the COVID-secure guidelines, introducing regular testing, homeworking or redeployment into a role suitable for homeworking could be more effective and less discriminatory means of achieving a health and safety legitimate aim (see Practice note, COVID-19: Managing COVID risk in the workplace: COVID-19 Secure guidelines (working safely), Workplace testing and Can an employer require employees to take a COVID-19 test at work or before returning to work?).

Direct discrimination

An employer’s actions in requiring vaccination of a particular employee, or in treating them less favourably because they are unvaccinated, could directly discriminate against them contrary to section 13 of the EqA 2020 (see Practice note, Direct discrimination).

Unlike indirect discrimination, direct discrimination cannot be justified unless it is on the ground of age (see Practice note, Direct discrimination: No justification defence except in age claims).

Can an employer ask whether a candidate has been vaccinated as part of its recruitment process?

It is unclear whether asking a candidate their vaccination status could be a prohibited health question in some circumstances under section 60 of the EqA 2010.

Other than in the circumstances set out in section 60(6), a person (A) to whom an application for work is made must not ask about the health of the applicant (B) either:

• Before offering work to B.
• Where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work.
(Section 60(1).)

”Offering work” is defined as “making a conditional or unconditional offer of work” (section 60(10)). Therefore, “job offers can be made conditional on satisfactory responses to pre-employment disability or health enquiries or satisfactory health checks” (EHRC Code, paragraph 10.39). However, employers must not discriminate against job applicants in response to the results of such enquiries or checks.

The purpose of section 60 is to ensure that disabled applicants are assessed objectively for their ability to do the job in question, and that they are not rejected because of their disability (EHRC Code, paragraph 10.27).

Section 60 does not define in detail what a question “about the health of the applicant” might include. A question concerning a job applicant’s vaccination status could be unlawful unless it falls within one of the limited circumstances in which a health question can be asked under section 60(6). These include questions relating to:

• The candidate’s ability to carry out a function that is intrinsic to the job (section 60(6)(b)).
• Reasonable adjustments needed for the candidate to carry out the job (section 60(7)).
The employer should not ask such questions until after it has made a job offer to the candidate, unless the questions relate to a function that is intrinsic to the job (EHRC Code, paragraph 10.42).

For further information, see Practice note, Disability discrimination: Prohibition of pre-employment health questions.

Human rights issues

There may be scope to argue that a vaccination requirement is 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. 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 ECHR post-Brexit. UK courts are required, as far as possible, to interpret all legislation in a way that is compatible with the ECHR (section 3, Human Rights Act 1998 (HRA 1998)) (see Practice note, Interpreting legislation under section 3 of the Human Rights Act 1998).

Further, it is unlawful for public authorities (which includes public sector employers) to act in a way which is incompatible with the ECHR (section 6(1), HRA 1998) (see Practice note, Human Rights Act 1998: overview: Duty for public authorities to act compatibly). A public sector employer and an employment tribunal must carefully consider whether that interference can be justified.

In Vavřička and others v Czech Republic (Application nos 47621/13, 3867/14, 73094/14, 19298/15, 19306/15 and 43883/15), the European Court of Human Rights (ECtHR) held that the Czech Republic’s mandatory pre-school vaccination requirements for children did not breach Articles 8 and 9 of the ECHR. Although the combined cases relate to mandatory state vaccination requirements and do not specifically consider COVID-19 vaccination, the judgment is still of some relevance to employers.

Mr Vavřička was fined for non-compliance with the Czech law that all children must be vaccinated against nine diseases. The other applicants were all refused admission to nursery school because they were unvaccinated.

The ECtHR recognised that mandatory vaccination, as an involuntary medical intervention, was an interference with physical integrity and therefore the right to private life protected by Article 8. However, it held that the Czech policy pursued the legitimate aim of protecting against diseases which could pose a serious risk to health. This objective corresponded to the aims of the protection of health and the protection of the rights of others recognised by Article 8. It considered that the policy was a proportionate means of achieving those legitimate aims, taking into account that:

• The vaccinations were considered effective and safe by the scientific community and exemptions were permitted on health grounds or for a “secular objection of conscience”.
• Vaccination was one of the most successful and cost-effective health interventions and each state should aim to achieve the highest possible level of vaccination among its population.
• No vaccinations had been administered against the will of the applicants (nor could they be under Czech law).
• The inability of some children to be vaccinated for medical reasons made it important to reach a very high vaccination rate to provide herd immunity against contagious diseases.
• Mr Vavřička had only received a relatively small fine.
• The non-admission of the other applicants to nursery school was a preventative rather than a punitive measure, and their admission to primary school would not be affected by their vaccination status.
The court held by a majority that the complaints under Article 9 were inadmissible as the applicants had failed to show that their opinions about vaccination were of sufficient cogency, seriousness, cohesion, and importance to constitute a protected belief. For further information, see Legal update, Imposition of penalties for failure to comply with compulsory national vaccination policy not a breach of human rights (ECtHR).

In 2012, the ECtHR reached a similar decision in Solomakhin v Ukraine (Application number 24429/03) that the Ukraine’s mandatory diphtheria vaccination scheme was contrary to Article 8, but could be justified by the country’s legitimate aim of preventing the spread of the disease.

On 27 January 2021, the Parliamentary Assembly of the Council of Europe (the human rights body responsible for the ECHR) passed Resolution 2361 (2021) on Covid-19 Vaccines: ethical, legal and practical considerations by a majority of 115 to 2 (with 13 abstentions). The resolution calls for member states (which include the UK) to:

• ”ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves” (emphasis added) (paragraph 7.3.1).
• ”ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated” (emphasis added) (paragraph 7.3.2).
Although the resolution does not have the status of binding law, it suggests a strong consensus at a European level on the human rights implications of COVID-19 vaccination. This view may inform decisions of the ECtHR on the lawfulness of mandatory vaccinations, or any domestic court considering the human rights implications of an employer’s vaccination policy in, for example, an unfair dismissal case.

Practical workplace vaccination issues

Does an employer have a health and safety obligation to ensure its employees are vaccinated?

Employers have health and safety duties to their employees and the people that they come into contact with, including customers or service users and third parties, to minimise the risk of exposure to COVID-19.

The nature of some workplaces, such as frontline healthcare or care homes for the elderly, may mean that vaccination as a precondition of work in some roles could potentially be justified on health and safety grounds.

The government intends to make vaccination compulsory for workers in care homes) and potentially the wider health and social care sector. However, the government must consider whether vaccination is a proportionate way to address that risk, in view of the potential discrimination and human rights arguments.

An employer wishing to impose a mandatory vaccination requirement must first:

• Undertake a detailed risk assessment to evidence why COVID-19 vaccination is required in addition to compliance with the stringent COVID-secure guidelines already in place.
• Consult with workplace representatives or trade unions.
(See Practice note, COVID-19: Managing COVID risk in the workplace: Five steps to working safely and Employer duty to consult on health and safety.)

The employer should regularly review the vaccination requirement as the current mass vaccination programme progresses.

Should employers require employees to sign a vaccination waiver?

Owing to the potential risk of a claim from a worker who contracts COVID-19 in the workplace, it has been suggested that employers may wish to consider requiring workers who refuse the vaccine to sign a waiver indicating that they understand the medical risks of their decision as a condition of being permitted to enter their workplace.

Employees cannot waive liability for personal injury caused by an employer’s negligence (section 2, Unfair Contract Terms Act 1977). Therefore, such a waiver would be ineffective if the employer is not fully complying with the COVID-secure guidelines.

In practice, a worker who contracts COVID-19 is likely to struggle to establish that their employer was liable to them, as long as the employer:

• Is fully complying with all required COVID-secure measures.
• Is not unnecessarily requiring its employees to enter the workplace.
In many cases, it will be difficult to establish that the worker contracted COVID-19 in the workplace as they will almost certainly have been exposed to risk elsewhere. Further, a signficant number of individuals who contract COVID-19 are asymptomatic and are therefore not tested. If the workplace does not require regular testing, the employer would not be aware that its workers were exposed in the workplace and therefore could not take additional measures to prevent transmission.

Conversely, employers who require their workers to receive vaccination as a condition of employment may consider requiring them to sign a waiver to guard against any potential claims arising out of an adverse reaction to, or long-term side effects from, the vaccine. However, given that the current known risk is so small, it does not seem a reasonable requirement.

Does an employer have a health and safety obligtion to privately obtain vaccines for its employees if these become available?

The government vaccination programme prioritises individuals most at risk from COVID-19 or in frontline roles. It is therefore likely that when private vaccines become available, the government will already have offered the vaccine to those most at risk.

However, an employee may not have accepted the previous offer of vaccination, for example, because they were pregnant or breastfeeding at the time (see Women of childbearing age, pregnant or breastfeeding). Therefore, some unvaccinated employees may be working in higher-risk workplaces, and the employer may wish to offer to facilitate their vaccination on a case-by-case basis.

There is no case law on this issue. However, in X v Y UKEAT/0322/12, an employment tribunal held that an employer’s failure to procure a hepatitis vaccine for an employee whose role exposed her to significant risk was a breach of its duty to provide a safe system of work. The employee was entitled to rely on this breach, taken together with other incidents, as a breach of the implied duty of trust and confidence, entitling the employee to resign and claim constructive dismissal. This issue was not, however, considered on appeal, which related solely to the employee’s discrimination claim.

Can an employer make an offer of employment conditional on proof of vaccination?

An employer could make an offer of employment conditional on the candidate providing proof of vaccination. However, until the government rolls out the vaccination programme further, this is likely to cause practical difficulties, as it is likely that many candiates will not have received their vaccination offer. Further, proof of vaccination may also be an issue as not everyone who is vaccinated currently receives a vaccination card. The government may introduce “vaccination passports”, which businesses could use to restrict entry to premises, and which could extend to workplaces. The government has said that it will not take action against businesses to prevent this approach. However, employers should consider:

• The data protection issues of requiring proof of vaccination and processing that data (see Data protection implications of retaining vaccination data in relation to employees and workers).
• That this requirement is likely to cause delays in the recruitment process and discourage otherwise suitable applicants from applying.
• That job applicants are protected against discrimination in the same way as employees (see Potential discrimination issues and Practice note, Discrimination in employment: who is protected and who is liable?: Job applicants).
• The potential human rights issues (see Human rights issues).

Can an employer prevent unvaccinated employees from entering the workplace?

Previously, it was not practicable for most employers to prevent unvaccinated staff from entering the workplace as a large part of the working population had not been offered even a first dose of the vaccine. Vaccination is now available to all people aged 18 and over.

Employers should carefully consider whether it is appropriate to prevent unvaccinated staff from from entering the workplace before making a decision. Current government advice is clear that the vaccination status of a workforce has no impact on the COVID-secure guidelines employers must follow. Further, the extent to which vaccination reduces the risk of transmission is still under review. Conversely, employers have health and safety obligations to their employees and those entering their workplaces and there are serious consequences for non-compliance (see Practice note, COVID-19: Managing COVID risk in the workplace: Workplace health and safety obligations).

Where an unvaccinated employee is retained under a zero-hours contract, the employer could simply not offer future work to them. However, it should consider whether there are any potential discrimination risks (see Potential discrimination issues). For example, zero-hours staff are likely to be from a younger age group and therefore not on the priority list for vaccination.

In relation to salaried or fixed-hours employees, an employer could consider all the alternatives to vaccination, such as allowing them to continue to work from home, if possible (see Alternatives to mandatory vaccination). However, the employer must ensure that employees working remotely do not suffer any detriment, and consider that vaccinated employees might consider it a detriment to be required to come back to work. To facilitate employee relations, a hybrid working arrangement for all staff may be preferable.

The position may differ in relation to frontline healthcare workers and other sectors in close contact with vulnerable individuals. The government has offered vaccination to all workers in those sectors. Vaccination will be mandatory for workers in care homes (see Vaccination as a condition of deployment in care homes) and may become mandatory for the wider health and social care sectors (see Vaccination as a condition of deployment in healthcare and the wider social care sector).

The Chief Medical Officer, Chris Whitty, has said that healthcare staff have a professional duty to be vaccinated and the General Medical Council and the British Medical Association (BMA) appear to accord with this view. However, the BMA has said that any proposal for a contractual or regulatory requirement for healthcare workers to be vaccinated would require careful scrutiny to consider the legal and ethical implications (see NHS “considering mandatory vaccination for frontline staff”, personneltoday.com, 24 February 2021).

Can an employer discipline an employee who refuses to have a COVID-19 vaccine?

An employer could argue that a vaccination request amounts to a reasonable management instruction on the basis that it is intended to protect health and safety (see Practice note, Implied terms in employment contracts: Duty to obey lawful and reasonable orders). Failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal.

Whether a vaccination requirement is a reasonable management instruction depends on the facts of the case, for example, the nature of the employee’s role and the number of CEV colleagues in the workplace. For example, pending the outcome of the current consultation, employers in the care or healthcare sector could issue a reasonable instruction to employees to be vaccinated because refusal could put vulnerable patients at risk. However, employers in another sector, where employees can work effectively from home, may be in a weaker position to argue that an instruction to be vaccinated is reasonable.

If the employer deems an employee’s refusal to be vaccinated unreasonable, then disciplinary action might be justified (on the basis that they are not acting in the best interests of their employer, colleagues and potentially customers to take care of their health and safety). Wording to this effect was previously included in the Acas guidance but has now been removed.

Can an employer dismiss an employee who refuses to have a COVID-19 vaccine?

A significant number of employees in the most high-risk industries do not currently have the required two years’ continuous service to accrue unfair dismissal rights (see Legal update, One in four employees currently have no unfair dismissal rights, TUC finds). Additionally, there are a signficant number of workers and self-employed contractors whose contracts can be terminated without the risk of an unfair dismissal claim.

To fairly dismiss an employee with the requisite length of service, an employer must be able to rely on one of the five potentially fair reasons for dismissal (see Practice note, Unfair dismissal: overview: Potentially fair reasons for dismissal). We consider the potentially applicable reasons below.

Capability or qualifications
A dismissal is potentially fair if it “relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do” (section 98(2)(a), Employment Rights Act 1996 (ERA 1996)).

For the purposes of an unfair dismissal, “capability” should be assessed by reference to an employee’s “skill, aptitude, health or any other physical or mental quality” (section 98(3)(a)). The capability must relate to the work that the employee was employed to do (section 98(2)(a)). A dismissal may be fair even if the employee is still able to do part of their job (Shook v London Borough of Ealing [1986] IRLR 46).

Capability cases generally relate to poor performance or ill-health. We are not aware of any case law in which the issue of vaccination was held to fall within the subcategory of “health or any other physical or mental quality”.

For further information on capability dismissals, see Practice notes, Unfair dismissal: ill-health and Unfair dismissal: poor performance.

Misconduct

It is potentially fair to dismiss an employee for a reason that “relates to the conduct of the employee” (section 98(2)(b), ERA 1996). Refusal to comply with a reasonable management instruction can amount to misconduct justifying dismissal in some circumstances.

In applying the “reasonableness test” under section 98(4), tribunals will consider whether:

• The employer has a contractual right to require the employee to carry out the duty (although this is not decisive).
• There is a custom and practice of employees of that kind following the instruction.
• The employer’s instruction was reasonable.
• The employee’s refusal was unreasonable.
Tribunals are not likely to consider a vaccination requirement reasonable unless it is essential and necessary for the employee to carry out their role (see Can an employer discipline an employee who refuses to have a COVID-19 vaccine?). We expect that a tribunal would sympathise with an employee who did not want to receive a COVID-19 vaccine and was dismissed or disciplined as a result. A tribunal would be slow to find it fair to impose what is effectively a medical procedure on employees, although we are unaware of any authority directly on the point and the nature of the workplace could be a relevant factor.

The dismissal of an employee for failure to follow a management instruction in relation to safeguarding the health and safety of other people was found to be fair by the Northern Ireland Industrial Tribunal in Maalouf v Teletech UK Ltd (Case ref: 1673/14). That case concerned an employee eating nuts at his desk in an open-plan office near a colleague with a severe nut allergy. It would be much harder to establish a direct link between an employee’s lack of vaccination and potential harm to their colleagues or others they come into contact with during their employment.

Some other substantial reason (SOSR)

”Some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” (SOSR) is a potentially fair reason for dismissal (section 98(1)(b), ERA 1996).

SOSR grounds that might be relevant where an employee refuses vaccination depending on the particular circumstances include:

• Refusal to accept changes to terms and conditions (see Practice note, Unfair dismissal: some other substantial reason: Refusal to accept changes to terms and conditions).
• Pressure from third parties (see Practice note, Unfair dismissal: some other substantial reason: Pressure from third parties).
• Reputational risk (see Practice note, Unfair dismissal: some other substantial reason: Reputational risk).
• Breakdown in trust and confidence (see Practice note, Unfair dismissal: some other substantial reason: Breakdown in trust and confidence).
For further information on SOSR dismissals generally, see Practice note, Unfair dismissal: some other substantial reason.

Reputational risk

Employers should also consider the potential reputational risk and risk to workplace relations before dismissing an employee for refusing a COVID-19 vaccine. The first employers to take this action are likely to receive significant, and likely negative, press attention.

Are employees entitled to paid time off to be vaccinated?

In the absence of a specific contractual provision, there is generally no legal requirement for employers to provide employees with paid time off to attend their vaccination appointments. However, employers paying staff their usual rate of pay could encourage employee take-up of the vaccine (Acas guidance), which, in turn, supports an employer’s statutory and implied duties to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace and system of work (see Section 2, Health and Safety at Work etc. Act 1974 and Practice note, Implied terms in employment contracts: Health and safety duties).

Employers should consider in particular whether it would be a reasonable adjustment to provide paid time off for a disabled employee to attend their vaccination appointments, given the extra difficulties some disabled people may face.

In March 2021, the Trade Union Congress (TUC) published figures suggesting that fewer than half of employers (including large employers) were giving staff paid time off for vaccination appointments. The TUC urged the government to put more pressure on those employers, as it said failure to provide paid time off was hindering the vaccine rollout (see TUC says Covid vaccine efforts hindered by lack of paid time off for jab, theguardian.com, 22 March 2021).

What are employees entitled to be paid if they suffer side effects from the vaccine and are unfit to attend work?

The vaccine can cause mild, short-term side effects in some individuals, which usually last less than a week. Common side effects include:

• Having a painful, heavy feeling and tenderness at the injection site. This tends to be worst around one to two days after the vaccine.
• Feeling tired.
• Headache.
• General aches, or mild flu-like symptoms.
• Feeling feverish for two to three days, although a high temperature is unusual and may indicate the individual has COVID-19 or another infection.
Individuals are advised to rest and take the normal dose of paracetamol to help them feel better. (PHE: COVID-19 vaccination: what to expect after vaccination.)

In most cases, an employee should not need to take time off work following vaccination. Where they do, this should be short term and the employer’s usual sick pay policy should apply.

One way employers can encourage staff vaccination is to ensure that they are paid their usual rate if they are off sick with vaccine side effects (Acas guidance). Acas also suggests that vaccine-related absence should not count towards HR trigger points in sickness absence policies after which absence is dealt with formally in accordance with the procedure in the policy.

What is an employee entitled to be paid if they refuse to be vaccinated?

The issue of pay for employees who refuse the vaccine should only arise where an employer decides that unvaccinated staff should not enter the workforce. For the potential difficulties in taking this approach, see Can an employer prevent unvaccinated employees from entering the workplace?.

Employers should pay employees who can undertake their role remotely as normal. However, where an employee is unable to carry out their role remotely, the issue of pay is problematic. The employee will argue that they are willing and able to work and should therefore be paid in full. However, the employer’s position will be that the employee cannot work for health and safety reasons.

Statutory sick pay (SSP) is not available where an employee is fit for work but unable to work because their employer requires them to be vaccinated. The exception is employees who are shielding as they are within the CEV group (see Practice note, COVID-19 (Coronavirus) and employment law: Is an employee who is shielding entitled to statutory sick pay?).

It may be possible for the employer to furlough the employee under the Coronavirus Job Retention Scheme (see Practice note, COVID-19: Coronavirus Job Retention Scheme from 1 July 2020 (flexible furlough)).

In the absence of a specific contractual provision, we do not consider that an employee could successfully argue that their employer suspended them on medical grounds as the statutory meaning of medical suspension would not apply (see Practice note, Managing sickness absence: Medical suspension (statutory meaning)).

If the employer suspends the employee for disciplinary reasons, they are entitled to be paid in full until the outcome of the disciplinary procedure (see Practice note, Conducting a disciplinary investigation: Pay during suspension).

Where an employee is unable to be vaccinated for medical reasons, or refuses vaccination on, for example, religion or belief grounds, there is authority to suggest that the employee’s inability to work is due to an “unavoidable impediment” or external constraint and the employer should continue to pay them (see Practice note, Implied terms in employment contracts: Duty to pay wages).

What are employees entitled to be paid where they are waiting to be vaccinated?

Some employees may wish to be vaccinated but have not yet been offered the opportunity because they are considered lower priority, for example, younger workers who are not within the CEV group.

For the reasons explained in Can an employer prevent unvaccinated employees from entering the workplace?, we do not consider that preventing unvaccinated employees from entering the workforce is preferable or fair at this stage. However, where an employer refuses to allow an employee who wishes to be vaccinated to attend the workplace and they are unable to work from home, we consider that the employee is entitled to be paid in full.

Can an employer withhold sick pay from an employee who contracts COVID-19 after refusing to be vaccinated?

We do not consider that an employer could withhold either statutory or contractual sick pay from an employee who has refused the vaccine and contracted COVID-19. The reason an employee has become ill does not affect their entitlement to SSP (see Practice note, Sick pay: Statutory sick pay (SSP)).

Some employers may have made 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, we consider it unlikely that such a clause would sufficiently cover this situation.

Do vaccinated employees still have to follow social distancing guidelines and take protective measures in the workplace?

Current government guidance is that everyone, including vaccinated individuals, must continue to follow social distancing guidelines, wear a face mask where required, and wash their hands thoroughly and frequently. Employers should advise vaccinated employees to follow the current advice on testing and self-isolation if they develop any COVID-19 symptoms, or health or social care workers to undergo regular testing. Vaccination will not affect either the requirement to be tested or the test results themselves. (PHE: COVID-19 vaccination: information for healthcare practitioners.)

The government guidance for employers makes it clear that they must continue to follow the applicable COVID-secure guidelines until further notice, regardless of their employees’ vaccination status.

However, when England enters Step 4 of the roadmap out of restrictions (currently expected to be 19 July 2021), social distancing rules will be lifted, including in workplaces (see Practice note, COVID-19: Managing COVID risk in the workplace: Summer 2021 roadmap: social distancing). The government has indicated that it will be updating the Working safely guidance to advise employers of sensible precautions that they can take to reduce workplace risks. This will include guidance on hygiene protocols and ventilation. The requirement to wear a face covering in certain settings will also be removed from Step 4 of the roadmap. However, published guidance will continue to advise that wearing a face covering will reduce the risk of infection in enclosed and crowded spaces where individuals come into contact with people they do not normally meet. Whether an employer can mandate face coverings for those who are not fully vaccinated will depend on the industry that they work in, the type of workplace and the results of their COVID risk assessment. Further guidance is awaited on this point.

Can an employer discipline an employee known to be promoting anti-vaccination amongst the workforce?

Some employees may have a strongly held belief that vaccines are harmful to public health (anti-vaxxers) and may seek to promote this amongst an employer’s workforce. In this situation, employers should consider the behaviour in question and the impact it is having on its workforce to determine whether it may be appropriate to conduct a disciplinary investigation (see Practice note, Conducting a disciplinary investigation and hearing: overview.)

To determine the appropriate course of action, employers should consider the following:

• It is unlikely that a belief that vaccines are harmful to public health will amount to a protected belief under the test set out in Grainger v Nicholson [2010] IRLR 4 (see Indirect discrimination and Practice note, Religion or belief discrimination: Philosophical belief.) However, there is no case law specifically on this point.
• The employees’ Article 9 right to freedom of thought, conscience and religion and Article 10 right to freedom of expression (see Human rights issues and Practice note, Human Rights Act 1998: overview).
• The employer’s statutory duty to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all its employees and the impact the employee’s actions have on the employer’s ability to comply with this duty (Section 2, Health and Safety at Work etc. Act 1974).
• The employer’s implied duty to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace and system of work and the impact the employee’s actions have on the employer’s ability to comply with this duty (see Practice note, Implied terms in employment contracts: Health and safety duties).
• The employee’s duties to take reasonable care for the health and safety of themselves and of other persons who may be affected by their acts or omissions at work; and to co-operate with their employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety (Section 7, Health and Safety at Work etc. Act 1974).

Introducing a contractual requirement

Any contractual change requiring existing employees to accept vaccination when it is offered to them must satisfy the usual considerations where a change to contractual terms is proposed (see Practice note, Changing terms of employment: Changes not authorised by the contract: the options). Without employees’ agreement, the employer is faced with either unilateral imposition of the change, or terminating and offering 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 (see Human rights issues and Potential 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.

Implementing a vaccination policy

An alternative to introducing a contractual vaccination requirement is to introduce a vaccination policy which encourages all employees to receive the vaccine when possible, but accepts that there are circumstances in which it is not appropriate. However, the absence of a contractual requirement may make it more difficult to fairly and reasonably discipline or dismiss an employee who refuses vaccination (see Introducing a contractual requirement).

Employers who would like to implement a vaccination policy should consider:

• Consulting with staff associations or unions before implementing any policy.
• How they intend to communicate with staff about the vaccination policy, including how they will use employees’ personal data (see Data protection implications of retaining vaccination data in relation to employees and workers).
• Their data protection obligations in processing data and the compatibility of the vaccination policy with their legal responsibilities.
• How they can use the policy to reduce the risk of potential workplace conflict between vaccinated and unvaccinated staff.
• In what circumstances they need to review the policy, for example, when private vaccination becomes possible.
A vaccination policy should also address the following issues:

• Purpose and benefits of vaccination. The policy should:
• explain that its purpose is to facilitate the health and safety of employees and others entering the workplace, including service users and third parties, and compliance with the employer’s health and safety obligations;
• provide information for employees on COVID-19 vaccination and set out the employer’s position in respect of related workplace issues;
• encourage vaccination in line with public health advice, while acknowledging that some individuals will be unable, or unwilling, to receive the vaccine for medical or other reasons; and
• make it clear that vaccination is not a substitute for other health and safety measures, including compliance with the COVID-secure guidelines.
• Scope of coverage. The policy should confirm:
• which roles and workplace locations are encouraged to receive the vaccine and why;
• whether there are any circumstances in which the employer requires vaccination, and the justification for this. For example, once the government lifts travel restrictions, an employee may need to be vaccinated to meet the entry requirements of another country where travel is a necessity of the role; and
• whether it extends to everyone who enters the workplace, including contractors, visitors and other third parties.
• Pay. The policy should confirm whether employers will give employees paid time off to attend their vaccination appointments.
• Data protection and privacy. The policy should:
• explain how the employer will use employee vaccination data;
• confirm how long the employer will retain employee vaccination data for;
• confirm what decisions the employer will make based on the data held; and
• confirm that the employer will keep any data they hold confidential.
For a sample policy, see Standard document, COVID-19 vaccination policy.

Data protection implications of retaining vaccination data in relation to employees and workers

The Information Commissioner’s Office (ICO) website has a vaccination section that provides useful guidance for employers (ICO: Vaccinations).

For more information on the issues surrounding vaccination, see Practice note, COVID-19: Managing COVID risk in the workplace: Can employers lawfully conduct temperature checks on employees, workers or visitors?.

Can employers ask employees and workers if they have been vaccinated and keep a record of which staff have been vaccinated?

Employers may want proof of vaccination:

• To track staff vaccination levels within their workforce and assess the risk of transmission within the workplace.
• To ascertain individual’s eligibility under any vaccination incentive schemes.
The government is currently considering whether they should introduce “COVID status certification” (see COVID status certification review).

Employees’ health information falls into the category of special category personal data (see Practice note, UK GDPR and Data Protection Act 2018: employer obligations: Special categories of personal data (previously sensitive personal data)).

As with the processing of all special category data, employers must identify both a lawful basis under Article 6(1), and a condition for processing under Article 9, of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR). If they cannot do so, any processing is in breach of the UK GDPR.

Article 6(1), UK GDPR
The lawful bases for processing personal data under Article 6(1) of the UK GDPR include:

• Employer’s legitimate interests. To rely on this category, employers must identify a legitimate interest and show that processing is necessary to achieve it, taking into account the employees’ interests, rights and freedoms (see Practice note, UK GDPR: lawful processing of employee data and the problem with consent: Legitimate interests).
• Consent. However, the ICO guidance on vaccination states that consent is rarely appropriate in an employment setting given the imbalance of power between the employer and employee. Therefore, it is preferable for employers to find an alternative basis for processing the data (see Practice notes, UK GDPR and Data Protection Act 2018: employer obligations: Employee consent and UK GDPR: lawful processing of employee data and the problem with consent: Consent).
For more information, see Practice note, UK GDPR and Data Protection Act 2018: employer obligations: Conditions for lawful processing under Article 6(1).

Article 9, UK GDPR
The grounds for processing special category data under Article 9 of the UK GDPR include:

• Performance of rights and obligations in connection with employment. This could include processing to ensure the health, safety and welfare of workers, and ensure a safe working environment (see Practice note, UK GDPR: lawful processing of employee data and the problem with consent: Necessary for performance of rights and obligations in connection with employment).
• Health purposes. This could include processing where it is necessary for the assessment of the working capacity of the employee (see Practice notes, UK GDPR: lawful processing of employee data and the problem with consent: Health purposes and UK GDPR and Data Protection Act 2018: employer obligations: Occupational medicine).
For more information, see Practice note, UK GDPR: lawful processing of employee data and the problem with consent: Processing grounds: special category data.

ICO guidance
The ICO advises that:

• An employer can rely on either the employment condition or the health condition under Article 9 of the UK GDPR as a condition for processing. However, where relying on the public health condition, it must ensure that a health professional carries out the processing, or that it advises employees that it will treat their vaccination status as confidential and only disclose it in defined circumstances. (ICO: Vaccinations: I have been contacted by a public health authority / relevant body wishing to invite my employees to have the COVID-19 vaccine. Can I share this data?.)
• An employer’s reasons for recording their employees’ vaccination status must be clear and compelling. Employers should not record the data on a “just in case” basis. Relevant factors include the sector the employer operates in, the type of work undertaken by staff, and the particular health and safety risks in its workplace. (ICO: Vaccinations: Can I collect data about whether my employees are vaccinated against COVID-19?.)

How long should an employer retain employees’ vaccination data?

Retention of vaccination data is a fast-moving area. As things develop, an employer may not be able to justify its reasons for storing vaccination data for as long as it originally intended.

The ICO advises that employers should regularly review whether they still have grounds for the collection and retention of vaccination data, particularly as the vaccination roll-out progresses and more people receive the vaccine. This should include monitoring the latest government and scientific advice on the vaccine roll-out and COVID-19 restrictions. (ICO: Vaccinations: What else do I need to do if I collect information about whether my staff are vaccinated?.)

What information should be given to employees about collection and retention of vaccination data?

The ICO advises that an employer must be transparent if it decides to record vaccination data. It must ensure that its employees understand why it needs to collect the information and what it will use it for. (ICO: Vaccinations: What else do I need to do if I collect information about whether my staff are vaccinated?.)

Employers should also inform staff about:

• What personal data is required.
• Who it will share the data with.
• How long it will keep the data for.
• What decisions it will make based on the data held.

What other steps should an employer take if it decides to retain vaccination data?

The ICO cautions that:

• The collection of vaccination data must not result in any unfair or unjustified treatment of employees.
• The employer should only use the data for purposes employees and workers would reasonably expect.
• Where the use of vaccination data is likely to result in a high risk to individuals, such as a denial of employment opportunities, that employers should complete a Data Protection Impact Assessment (DPIA) (see Practice note, Data protection impact assessments (DPIA) (UK)). The DPIA will assist in working through whether the employer needs to collect the information and in demonstrating what the grounds for processing the special category data are.
Employers may also need to update their employee privacy notice to reflect the new activity, including how long they will keep the vaccination data for, and whether they need to update their data protection policies and procedures and a record of processing activity (see Standard documents, UK GDPR Privacy notice for employees, workers and contractors and Data protection policy (UK)).

The collection of special category data requires additional safeguards. Employers should consider who should be able to access the information and what they could use the information for.

Do employees have the right to be notified if a colleague refuses to be vaccinated?

Information about an employee’s health is special category personal data. This means that the employer can only process it in defined and restricted circumstances (see Can employers ask employees and workers if they have been vaccinated and keep a record of which staff have been vaccinated?).

The ICO has advised that employers can disclose to employees that a colleague has contracted COVID-19, although they should not provide more information than necessary and should not in most cases name the individual. (See Practice note, COVID-19: Managing COVID risk in the workplace: Do employees have the right to be notified if a colleague/customer develops the virus?.)

The ICO states that an employer should respect its duty of confidentiality to its employees and should not routinely disclose vaccination status among colleagues unless it has a legitimate and compelling reason to do so (ICO: Vaccinations: What else do I need to do if I collect information about whether my staff are vaccinated?). It may therefore be appropriate for an employer to advise its employees that not all of their colleagues are vaccinated, but it would be inappropriate to identify those employees in most circumstances.