There have been recent news articles featuring a small number of companies including Pimlico Plumbers who have made decisions to introduce vaccination requirements into new contracts stating ‘no vaccine, no job’.
What are your rights as an employee and what line should employers be taking? We have set out below some of the most frequently asked questions we are receiving.
Can my employer make me get a Covid-19 vaccine?
The vaccinations are not mandatory at the moment and an employer cannot make you have a vaccination if you choose not to do so. An employer however, may be within their rights to take action if they believe there are good reasons for you to have the vaccine and you are refusing. This could be in circumstances where you work in healthcare or care home settings and the refusal of a vaccine could present a threat to yourself, patients or service users. Other examples are if you need to travel to another country for work and the vaccine is needed as a condition of travel into that other country. It is important to note that employees who are dismissed for not getting the vaccine may well have a valid claim of unfair dismissal, depending on the individual circumstances and provided the employee has had two year’s continuous employment with the employer.
If you have less than two years’ service, you may still be able to bring a claim if you believe your dismissal was a form of discrimination under the Equality Act 2010. Although the vaccine itself is not a protected characteristic, there may be a claim for indirect discrimination if the reason for refusal of the vaccine is one due to health or even religious reasons.
What can employers do to encourage staff to receive the vaccine?
Employers should encourage and not compel employees to have vaccinations. Providing factual public health information and engaging with employees as well as considering other options such as the use of PPE, social distancing and working from home should all be considered. If an employer thinks a vaccine will be necessary, open communications with staff or the workplace’s recognised trade union should take place to try to reach an agreement. The agreement should be put in writing eg. in a workplace policy.
Do I have to inform my employer that I am getting a Covid-19 vaccination?
If your employer has a policy in place that requires you to notify them of vaccinations and procedures then yes you would have to. If there is no policy in place then no, although if you need time off to attend vaccination appointments, this should be arranged in the normal way with your employer’s code of practice.
Can employers change contracts to include a vaccination clause?
Employers can amend their employment contacts to include a clause that employees should be vaccinated however, the employee must be in agreement with any changes to their terms and conditions of employment. The vaccine is not currently mandatory by law and it is not therefore possible to enforce that people have the vaccine. Employers must be very sensitive to individual’s and how they manage situations of employees who may not want the vaccine because of personal choice or where the workforce is younger and may not receive their vaccine appointment until later in the year.
It is unlikely that an employer could reasonably amend an employment contract to include a requirement that an employee is vaccinated however, as explained above, in some sectors and job roles, a vaccination may be required for health and safety reasons.
Issues could arise where people choose not to have the vaccine as they have a low risk role, (perhaps working from home), they may object on the basis of their religion or beliefs or may have strong objections for personal or medical reasons.
Employers need to be very wary as they could face discrimination claims if they terminated an employee’s employment or gave cause for staff to raise a grievance due to insisting on their vaccine or by treating them differently due to their views.
Can an employer require their employees to disclose their vaccination status?
Requesting health information from employees such as whether they have been vaccinated is classed as sensitive information under UK GDPR. Data regarding health is classed as “special category data” and is held to a higher standard than other personal data. Current guidance from the Information Commissioner’s Office states that: “Your reason for recording your employees’ vaccination status must be clear and compelling. If you have no specified use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it.” If you are keeping data that refers to vaccinations, you may need legal advice about how to correctly store and manage such sensitive medical data.
Do I have to tell a prospective new employer whether or not I have been vaccinated?
There is a general prohibition on employers asking new employees health related questions. There are some limited exceptions to this however, where some job roles may require a vaccination due to travel to another country or where there is a particular health and safety reason. The employer must not discriminate against any candidate who are unable to receive the vaccine due to disabilities or expectant mothers or any other reason that could be classed as indirect discrimination.
Should employers have a vaccination policy?
A vaccination policy which encourages and educates the company’s stance supported by medical evidence could be beneficial although it is not a requirement. Details regarding paid time off to attend vaccination appointments as well as information regarding data protection issues could also be included. Please call Lisa Aitken to discuss whether this type of policy would be right for your company.
If you are an employee and have concerns in relation to your employment and the vaccination or an employer with concerns about contracts and policies and how to ensure you are as protected as possible against any claims, please contact Lisa Aitken, our employment expert for free initial telephone advice on 07960 469988 or email: LisaA@moore-tibbits.co.uk.
The information in this article should not be taken as legal advice. Given that Government guidance changes on a daily basis, the information contained should only be regarded at the time it is written. This is a complex topic and employers and employees are encouraged to seek specialist legal advice in each instance.
