Tuesday 7 September 2021 9:10 am

Back to the office: Can employers bar unvaccinated people from the office?

As the Covid vaccine rollout is maturing across Britain, an increasing number of employers have indicated they will require their staff to be vaccinated before they can return to the office.

Earlier this year, Pimlico Plumbers was the first company in London to publicly announce a “no jab, no job” policy, after its founder revealed plans to spend upwards of £1m rolling out mandatory vaccinations for its staff.

Charlie Mullins told City A.M. “No vaccine, no job… When we go off to Africa and Caribbean countries, we have to have a jab for malaria — we don’t think about it, we just do it. So why would we accept something within our country that’s going to kill us when we can have a vaccine to stop it?”

But just how realistic is this, from an employment law point of view?

City A.M. caught up with two legal minds in the Square Mile to find out where employers and their staff stand.

“This is a controversial approach and stands on shaky legal ground,” said Philip Richardson, partner and head of employment law at Stephensons in Moorgate.

He told City A.M. that “a policy of ‘no jab, no job’ could raise claims on the grounds of discrimination, if not for unfair dismissal as there will always be some members of staff who cannot take the current vaccines on offer to due to medical, ethical, or religious regions.”

So rather than forcing them to get the vaccine, can employers refuse unvaccinated staff entry to their offices?

“Yes, potentially,” said Clare Irvine-Fortescue, an employment lawyer at Wedlake Bell in Blackfriars.

She explained to City A.M. that such approach may be part of any employer’s health and safety risk assessment.

“An employer is more likely to be able to justify a policy refusing unvaccinated staff entry to their own offices than a mandatory vaccination policy, especially in businesses where staff can work remotely,” Irvine-Fortescue said.

This may be especially the case in multi-occupancy offices and shared office spaces, such as WeWork.

“Consideration should be given to the other occupiers and, indeed, the landlord may have a view or policy on allowing only those who have been vaccinated into the building as part of their health and safety policy concerning the common parts, lifts and so on,” she noted.

Differences per sector

Moreover, in circumstances where a person is working in the healthcare sector, or with vulnerable children and adults, and refuses to get the vaccine, there may well be more validity to the request by the employer for vaccinations.

For example, a requirement to be vaccinated may be a reasonable request in the healthcare and care home sectors.  Indeed, from 11 November 2021 it will be a legal requirement for staff employed in registered care homes to be fully vaccinated unless they are exempt.

“In these circumstances, an employee who unreasonably refuses to be vaccinated could, in theory, be fairly dismissed,” according to Irvine-Fortescue.

The employer should, however, always consider whether there is an alternative to dismissal, such as assigning the employee to another role or permanent home-working, she added.

By contrast, in sectors such as professional services, where employees have been able to work from home effectively during the pandemic, it will be much more difficult for an employer to show that a policy requiring employees to be vaccinated is reasonable, Irvine-Fortescue explained.

Employment contracts

What are employee rights with regard to refusing the vaccine, for example in their contracts?

In the absence of any express contractual terms, both lawyers do not think employers currently have the contractual right to require an employee to be vaccinated.

Irvine-Fortescue set out that, in order to make the Covid vaccination an express legal requirement for employees, an employer would need to set out a vaccination clause in the employee’s contract of employment, explaining the business reason for the variation with a view to reaching an agreement with the employee.

“If an employer were to unilaterally vary the employee’s contract, they would likely be in breach of contract.”

Knowing who had the jab

One final but crucial issue would be for employers to know who actually had the vaccine, and who did not.

Information about individuals’ health is considered personal data that is tightly regulated by data protection law, said James Castro-Edwards, a data protection lawyer at Wedlake Bell in Blackfriars.

“This inherent sensitivity means that the UK data protection authority will treat the misuse of health data as a serious matter,” he explained.

Since the end of the Brexit transition period, so since 31 December, the handling of ‘personal data’ is regulated in the UK by the ‘UK GDPR’, as supplemented by the Data Protection Act 2018.

Employers can only access or use that data, in this case whether someone has received the vaccine or not, if they are able to establish a lawful basis for doing so, one of which is consent, but there are others.

“Valid consent must be freely-given [and this] is problematic in an employee / employer relationship as the employee may not have a genuine choice, in which case, any purported consent would be invalid,” Castro-Edwards noted.

So, employers that are unable to establish a valid lawful basis for processing data concerning their employees’ health risk enforcement action from the data protection authority, including fines, and potentially compensation claims from their affected workers.

“An isolated claim may be of limited concern, but a group litigation claim that includes hundreds or thousands of disgruntled employees would be a different story,” he warned.

Ultimately, vaccinations create a conflict of legal protections, where the freedom of individual choice is weighed against the health and safety of others, both lawyers agreed.

“While this policy isn’t in the pipeline for many businesses, there will be many conversations taking place to establish how and when businesses can invite their staff back into the workplace safely,” Richardson concluded.