Monday 1 February 2021 2:52 pm

Coronavirus: Employers cannot require staff to have the Covid-19 vaccine

As the number of people in the UK who have received a Covid-19 vaccine slowly approaches the 9m, the biggest vaccination programme in British history is gathering pace.

Prime minister Boris Johnson has pledged that the most vulnerable will all have had their jab by mid-February, with the rest of the country to follow before this Autumn. As a result, ministers gradually start to talk about an end to the third lockdown and some businesses dare to look beyond the pandemic.

Read more: UK orders 100m doses of Valneva’s Covid-19 vaccine ahead of clinical approval

The UK’s ambitious vaccine programme, however, has raised a number of legal questions about employee rights and employer obligations. Since 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.

First of all, 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.

Read more: Going legal: Why ‘no jab, no job’ could hurt more than any needle

A question that is on many people’s minds, including some NHS staff, is whether employers can force their workers 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.

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. 

Read more: Social distancing may not end in 2021 even with successful vaccine rollout

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, vaccinating 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.

Read more: How many Covid-19 infections are there in your London borough?