Written by: Hannah Williams

The rapid rollout of the COVID-19 vaccinations across the UK brings hope to many that the country is on its way to returning to ‘normality’. In anticipation of this, businesses are beginning to release their plan for the return of their employees back to the office. One of the most pressing questions that is being discussed is whether employers can make the vaccination a requirement for a return to the workplace.

Pimlico Plumbing have suggested that they may modify their contracts to require that all new employees must have the vaccination. They have also been discussing the possibility of changing current contracts to encourage getting vaccinated. However, they have stated that no one will be fired for not doing so. An alternative approach has been adopted by Marriott International. The hotel chain will give its workers bonuses for taking the vaccines although again, no workers will be fired for not taking them.

Another company who is leaning towards mandatory vaccines is Barchester Healthcare. They say that ‘one option under consideration is that staff who refuse the vaccine on non-medical grounds will, by reason of their own decision, make themselves unavailable for work’.

Is this requirement legally allowed?

The big question is can businesses actually force their employees to get vaccinated? There are two sides to consider.

Firstly, this may be possible on the grounds of health and safety protection. Businesses owe their employees a duty of care to ensure their safety at work, under the Health and Safety Information for Employees Regulations 1989. Therefore, it could be argued that the requirement of the vaccine at the workplace is simply abiding by these rules. A government source told The Telegraph that ‘If there is clear evidence that vaccines prevent transmission, the next stage is to make sure more and more people are taking up the vaccine’. This suggests that businesses may require the vaccination on the basis that it will allow it to fulfil its duty to protect its employees.

Furthermore, ACAS guidance currently suggests that if the employer deems it necessary for the employee to get the vaccine in order to carry out their job, they should first discuss and agree it with the trade union recognised in the workplace. However, it also explains that employers should support staff should they wish to get vaccinated but that this cannot be forced.

On the other hand, the requirement to get vaccinated may conflict with the protections under the Equality Act 2010 against workplace discrimination. If an employee refuses the vaccine due to religious beliefs, for example, the employer cannot simply dismiss them without breaching the Act. The business must also consider the potential claims it will receive from younger employees in retaliation to a mandatory vaccine. Due to the order of the vaccine rollout, the younger generation are generally last in the queue. This again may result in issues in relation to the Equality Act 2010. In addition to this, a mandatory vaccine may give rise to claims regarding an infringement of the employee’s Article 8 rights under the Human Rights Act 1998. Forcing a vaccine on employees to secure their job directly impacts their right to a private life and so may cause issues.

Although an employer may wish to refuse an employee to enter the workplace if they are unvaccinated, this would be likely to cause unwanted controversy.

If an employee were to refuse the vaccine on mere apprehension or fear however, a government source suggests that ‘where it’s an unjustified fear, we have got to help people get into the right place.’ The requirement to get a vaccine may then only cause major issues when based on a protected characteristic included in statute.

Another factor the business must take into account is the data protection implications involved. Storing data on whether an employee has received the vaccine comes under a special category of data under the General Data Protection Regulation and so requires extra processing. The business must be able to meet conditions of the GDPR and ensure strong protection is in place. If this is not done, the employer may face large fines and other unwanted repercussions for breaching the Regulation.

How have other sectors responded to this idea?

Some tech companies have also discussed this question and have begun planning their own response to such suggestions of a mandatory vaccination. Earlier last year, Onfido proposed their design of digital health certificates to the UK Parliament’s Science and Technology Committee. The company suggested that these immunity passports are likely to become the new norm. They also implied that it would help the country return to ‘normality’.

This shows how the change to make vaccines mandatory in the workplace have also arisen in other industries. Tech advancements have been inspired globally relating to whether such ‘passports’ are required to travel. Many would argue that this is the best way forward to enable pre-COVID activities to take place without fear of another mass infection.

Nevertheless, the UK’s vaccine minister Mr Zahawi has recently sustained that vaccine passports are not likely to be introduced. This is because it would be ‘discriminatory’ and so there seems to be no need for these proposals just yet.

Conclusion

Although vaccine requirements may be beneficial for a seemingly ‘safer’ return to the workplace, it appears that a softer, more persuasive approach is preferred to avoid any discriminatory issues until the legal implications of such a requirement are clear.

The freedom to choose for the individual seems to override the desires of the business to return to normality quickly.

Some argue that businesses should also not rely on the vaccination to provide the only protective measure within the workplace. Social distancing and face coverings are still suggested to ensure safety when employees return.