Can employers make COVID-19 vaccinations mandatory?

The UK government has not made COVID-19 vaccinations mandatory, nor does it seem likely that it will do so. As the vaccination programme gathers momentum, however, and with the UK government minister in charge of the vaccine rollout, Nadhim Zahawi, telling the BBC it is “up to businesses to decide” whether to require staff to have the vaccine, more employers are beginning to ask whether they can, in fact, force their employees to have the vaccine.

Some employers have decided to introduce policies making it mandatory, regardless of risk. Others are taking a more cautious approach. Either way, it is important for employers to understand the potential consequences for making vaccinations mandatory and for them to have properly considered the steps they need to take before introducing any such policy.

What claims might an employer face?

Unfair dismissal

Employers might choose to dismiss employees who refuse to have the vaccine. They might say that an employee’s refusal amounts to a failure to follow a “reasonable management request” which could arguably be an act of misconduct. Alternatively, they may say that there is some other substantial reason for dismissing, such as putting other employees’ health and safety at risk.

It is currently not known, however, whether such a dismissal for refusal to have the vaccine would be fair, as this has not yet been tested in the courts and tribunals. It may well be that a dismissal on those grounds does not fall within the range of reasonable responses for an employer to take. Whilst information and data around vaccine effectiveness remains limited (particularly around emerging COVID-19 variants) and whilst there are other measures that employers could implement (for example, working from home or the proper use of PPE) tribunals may well decide that there were other steps for the employer to take that would have been reasonable in the circumstances. That would leave employers exposed to claims for unfair dismissal going against them.

Constructive dismissal

The same principles apply for claims for constructive dismissal. An employee who is forced to have the vaccination by their employer may argue that the employer’s actions amounted to a very serious breach of their contract of employment (and particularly the implied term of mutual trust and confidence) such that they felt they had no choice but to resign in response. The employee might try to rely on other potentially available methods for preventing the spread of COVID-19 in support of their claim.

Discrimination

It may well also be the case that an employee legitimately refuses to have the vaccine because of a “protected characteristic” under the Equality Act 2010. Any mandatory policy or action taken by an employer against any such employee who refuses may then be potentially discriminatory.

For instance, women who are pregnant are not currently advised to have the vaccine and those with certain underlying health conditions and those with severe allergies are also advised not to have the vaccine. If an employer were to treat those individuals less favourably than others who are advised to have the vaccine they may find themselves facing claims for direct and/or indirect discrimination.

It may also be potentially discriminatory on the grounds of age to dismiss younger employees for not having a vaccination, in circumstances where they have not yet been offered the opportunity to do so.

If an employee objects to having a vaccination on the grounds of their religion or belief, there may be a potential risk of a complaint of discrimination on those grounds.  Any such policy will need to be carefully assessed in terms of whether it is objectively justifiable on non-discriminatory grounds.

GDPR considerations

Before implementing any COVID-19 vaccination policies and if they intend to process any personal data in relation to employees’ vaccination status, employers should pay very careful attention to the requirements of the Data Protection Act 2018 and the UK General Data Protection Regulations.

Processing information about whether employees have been vaccinated will constitute processing special category data for data protection purposes. Employers will need to handle this data appropriately and in accordance with the requirements of the relevant legislation.

This means that employers will need to think about and set out clearly to employees why they are collecting and processing the data. They will also need to use the data in a fair and necessary way that is relevant for a specific purpose.

The ICO has published a helpful FAQ on COVID-19 vaccinations and GDPR which can be  accessed here.

In summary

As more information on the effectiveness of the vaccine becomes clearer, it may be deemed more reasonable for employers to require their employees to have it. It may also be that as other sectors make vaccinations a requirement, (for example, to obtain life insurance or to travel abroad) the reasonableness of mandatory vaccination policies increases, on the arguable grounds that businesses may not, otherwise, be able to function properly.

There is currently, however, a level of risk associated with implementing mandatory vaccination policies that employers will need to consider before taking any action.

Each employer should think very carefully about why they might require staff to have the vaccine and whether, in the context of their particular workplace, that is likely to be deemed a reasonable requirement. Employers in the healthcare or services sector, where face-to-face contact with vulnerable individuals is a necessity, may have a stronger argument for putting in place mandatory vaccination policies, although they would still be wise to think about how they might then handle particular employees who are pregnant, have a disability or who hold certain religious beliefs, or other protected characteristics, that prevent them from having the vaccine.

Ultimately, it is best for employers at this time to encourage their employees to get the vaccine and to discuss in a sensitive way why certain employees may be reluctant to have it.