Preparing for the COVID-19 vaccine

Where a member of staff refuses to be vaccinated it is important for employers to have discussions with this individual to understand the reason(s) for refusal and, importantly, not to be dismissive of the reasons that are put forward.

Employers must also be alive to the fact that if a blanket policy is introduced requiring staff to be vaccinated, it is almost certain to lead to claims for unfair dismissal (assuming the plan is to dismiss those who refuse the vaccine), as well as claims for discrimination under the Equality Act 2010.

We strongly recommend that you have a dedicated policy in place, particularly if you are going to require employees to be vaccinated and there is no clause in your contracts requiring vaccination.

However, all employers should have a vaccinations policy so that employees understand exactly where they stand on this. Without a policy in place (setting out expectations and consequences of refusal), it is likely that any dismissal for refusal will be unfair.

There are also circumstances when vaccination may not be suitable and employees may refuse to have it on reasonable grounds. Therefore any policy should also set out what grounds may be considered reasonable, and should encourage a discussion between the employee and employer.

If you need assistance in preparing a policy then we can help - we are offering a fixed-fee vaccine policy writing service for £950 (+VAT). Further details are above or you can contact us to find out more.

It is important to understand why an employee is refusing the vaccine. It may be that they have inaccurate information about the vaccine and it has caused them to be concerned. In this scenario, you can often allay concern by directing the employee to reliable information resources.

Alternatively, an employee may refuse the vaccine based on religious reasons or health reasons. Again, it is important to encourage a sensitive conversation about these grounds for refusal, in order to understand if they are reasonable or not.

No.

There are data protection implications of asking employees to provide information on their vaccination status, as medical and health information will amount to ‘special category data’ which requires certain safeguards. The Information Commissioners Office’s (ICO) guidance on this issue states that you should not identify specific individuals that haven’t received the vaccine.

It is important to understand why the third party is insisting on your employees being vaccinated. If the insistence is due to the nature of the work (e.g. they provide frontline healthcare services), then it may be reasonable to expect employees to take up the vaccination when offered.

There are of course some reasonable grounds upon which an employee may refuse the vaccine. If employees do refuse (on reasonable grounds), then you have to consider, and discuss with the third party, whether the employees can continue to work on the premises with existing measures such as PPE and social distancing, or if there is alternative work that you can provide to your employees instead.

Ultimately, if a third party requires your employees to be vaccinated then this may give risk to a fair dismissal. However you will be expected, at the very least, to challenge the decision and look for an alternative route. If you have any concerns regarding dismissal as a result of third-party pressure, please speak to a member of our employment team.

The first question to consider is whether you really need the employees to return to the physical workplace.  If not, for example because they can work effectively from home, then it will be risky to try and compel individuals to come into the office - at least until we reach the point where the whole population has been offered both vaccines.

In the situation where you do really need employees to come back into the workplace then you should have a conversation with any employees that are refusing on COVID-related grounds, so that you can understand their rationale and hopefully persuade them that the risks are minimal.  If they still refuse, your next step would be to proceed down the disciplinary route. However, this is always going to be risky and we would recommend seeking legal advice before proceeding.

Our blog on managing employees who refuse to attend work addresses the common reasons why employees may refuse to return to work, and how you can tackle them.

As an employer you have an obligation to safeguard the health and safety of your employees, so allowing third parties on site unnecessarily is generally to be avoided, at least for the time being.  Where this is unavoidable, then all of the usual precautionary measures should be taken.

The main point to remember is that even someone telling you that they have had the vaccination will amount to ‘special category data’, so care needs to be taken to protect that information and keep it confidential in accordance with GDPR requirements.

If employees refuse to confirm whether they have had the jab, then you may be able to take disciplinary action on this basis. However, given that you are asking them to disclose special category data you should give careful thought to your justification for this from a GDPR perspective.

On 26 February 2021, ACAS issued an updated version of its guidance on working safely during the coronavirus pandemic to include the issues of workplace testing and vaccinations. There are a number of changes from their previous guidance, with the guidance no longer stating that employers:

• cannot force staff to be vaccinated;
• should only make getting the COVID-19 vaccine mandatory if it is necessary for that person to perform their job; and
• if an employer believes that an individual’s reasons for refusing to be vaccinated are unreasonable, the employer may take disciplinary action in some circumstances.

The rationale for these changes is not clear, although they reflect the degree of uncertainty in this area and are perhaps indicative of a desire, on the part of ACAS, not to be too forthright in its guidance.

With regards to making the vaccine mandatory, a new section within the ACAS guidance - Getting the coronavirus vaccine for work - provides employers with guidance on how to support employees to get the vaccine. ACAS has suggested that employers should encourage and support their employees to get vaccinated, as opposed to making it a requirement. It is suggested that employers discuss the vaccine and the benefits it provides with their workforce, any recognised trade union or other representatives.