As the 90-year old grandmother Margaret Keenan in Coventry became the first Brit to receive Pfizer’s Covid vaccination, the government’s nationwide vaccination program has kicked off in earnest.
With 800,000 doses of the vaccine to be rolled out in the coming weeks, some of our readers wondered whether their employers can force them to be immunised. City A.M. turned to Sarah Calderwood, a human resources and employment lawyer at Slater Heelis, to answer that question.
So what is the situation, can employers force staff to get the vaccination?
Under current health and safety legislation, employers have a duty to protect the health of employees, anyone on their premises and anyone else affected by the business. Existing vaccination guidelines state that if a risk assessment finds a risk of exposure to biological agents and effective vaccines exist, employers should offer to provide immunisations to those who are not already immunised, however, employees are at liberty to refuse immunisation.
So does an employer need to know whether one of his workers has been vaccinated against Covid-19?
Employers may have to make data protection considerations as the Information Chief Commissioner’s Office (ICO) has confirmed that an employee’s health information is special category personal data. In the context of vaccinations, a permitted ground for processing special category data would be for heath purposes. However, employers must ensure they are handling their employee’s data with care and the ICO advises that employers only need to obtain confirmation whether the employee has had the vaccine and collecting any more data is unnecessary and excessive.
Can my employer add an immunisation clause to my contract?
If employers want to make the Covid vaccine a contractual requirement, changes in the terms of the contract would need to be agreed by staff. Employers enforcing this change without employees’ express and implied agreement would be in breach of contract and employees would be entitled to resign and claim constructive unfair dismissal. Employers could find it difficult to show this change in terms as reasonable and may struggle to introduce this type of agreement for existing employees.
And what about new staff?
If employers were to introduce an immunisation clause into new starters’ contracts, it would have to be in a reasonable manner which would include consultations with any employees worried about the vaccine for any reason.
So employers cannot force their staff to get the vaccine or discipline those who refuse to do so?
No, ovaccinating employees without their consent would be criminal assault and probably be a repudiatory breach of contract. Although there is no case law, dismissing an employee because they do not want a Covid vaccine would likely be considered unfair dismissal as it is unusual for an employer to force staff to undergo a medical procedure. Vaccine requirements could also subject employers to discrimination claims as individuals may not be able to get vaccinated on health or religious grounds.
What can an employer do to encourage vaccination?
Employers who are keen for their staff to be immunised should write a non-contractual policy outlining the benefits of getting the vaccine and any arrangements for staff to be immunised. Any employees who refuse the vaccine could be met privately to explain the benefits again, but employers should not force or discipline staff who refuse.