In the past year businesses have faced unprecedented uncertainty due to the COVID-19 pandemic.  Now that lockdown measures are slowly being eased many are keen to resume normal operations, which means welcoming staff back to the workplace.

Given the recent disruption, businesses could be forgiven for wanting to ensure comprehensive Health and Safety measures are in place; they will want to keep their staff, customers and third parties safe and in turn attempt to avoid revisiting the challenges faced in recent months.  One potential option being considered by employers is the introduction of compulsory vaccines, which would ensure staff and customers are protected from COVID-19.

Whilst it may seem like a straightforward solution, there are a lot of legal considerations that businesses must take into account before introducing such policies.

Legal considerations before requiring vaccinations

By this stage, many people will have received at least their first COVID-19 vaccine, with others having already been fully vaccinated.  However, there are still some who will not have received them including:

• younger employees who are yet to be called for their jabs;
• those who cannot be vaccinated for medical reasons; and
• those who are reluctant to be vaccinated for other reasons.

Under Section 2 of the Health and Safety at Work Act 1974 (HSWA 1974), an employer must take all ‘reasonably practicable’ steps to reduce workplace risks, and it is an employee’s duty to co-operate with statutory risk-reducing requirements, as stated under section 7 of the same Act.

However, it is highly unlikely that this will extend to making the requirement to have a COVID-19 vaccination a condition of employment across all sectors, especially if there are other courses of action that employers could take to reduce risks.

The issue will be determining what constitutes being ‘reasonably practicable’.  The working environment differs between businesses and sectors, and so what one might consider a necessary measure, may seem excessive in another.  In any case, the legal position on compulsory vaccines is not clear cut, and so employers should fully risk assess the position and then consider other options first, such as moving employees to areas of the business that are less client facing.  Without careful planning, businesses risk claims on a number of grounds:

Unfair Dismissal: dismissing (or to a lesser degree disciplining) an employee should not be considered lightly, not least as any action has to be fair in all of the circumstances. Clearly there will be the need to consider this matter carefully, and further bear in mind that at this stage there is limited case law to assist in the interpretation of such circumstances.

Discrimination on Grounds including (but not limited to):

• Pregnancy and maternity: The latest advice issued by the Joint Committee on Vaccination and Immunisation (JCVI) states that pregnant women should be offered the vaccine at the same time as people of the same age and risk group. However, some women may choose not to be vaccinated due to concerns about its impact on the unborn baby, therefore dismissal could lead to claims for sex or pregnancy/maternity discrimination.
• Religion and belief: Not every type of COVID-19 vaccine has released a full and clear list of ingredients; therefore it is possible they contain substances that some employees cannot take due to their personal beliefs. It should be remembered that discrimination under this protected characteristic is not limited to religious beliefs.
•  Disability: If an individual has been told not to take the vaccine on medical grounds, then an employer’s decision to make it a condition of employment could be deemed as discriminatory on grounds of disability.

Data protection: Does the business have a legitimate interest or legal obligation to collect an employee’s vaccination records?  If not, then storing this type of sensitive information is likely to be deemed unlawful, especially if no security measures are in place to protect such information.

It is not only the possibility of having to pay out on expensive damages that need to be borne in mind when making the decision, but in addition the prospect of having to educate, train and manage employees, the potential damage to reputation, and the costs of having to deal with any claim that may ultimately be presented.

Seek legal advice before proceeding

Although it may seem a necessary step to keep employees and customers safe, there are a lot of potential challenges that come with requiring all employees to be vaccinated.  Therefore, before committing to any new policies and enforcing statutory requirements, it is crucial that every aspect of work is considered carefully; this means taking the time to engage an experienced team of legal professionals who understand the potential risks.  With their support and guidance your business can implement rules and regulations that keep people safe, without risking engaging in discriminatory practices.

If your business is considering requiring all employees to be vaccinated or you would like to discuss other issues relating to your workforce, then please get in touch with Jason Alcock, a director in our Employment Law team on 01543 267 196 or email jalcock@ansons.law.

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