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COVID 19 Compulsory vaccinations

View profile for Peter Brady
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Covid 19 and employment - what does the law say?

On 11th November 2021, the government introduced legislation requiring all care home workers to be vaccinated against COVID-19.
On 1st April 2022, further legislation will come into force requiring all health care and social care staff who have direct face to face contact with patients and service users to be vaccinated against COVID-19. Under the changes to the legislation, it will be a condition of employment that the employee has received a full course of the COVID-19 vaccine unless they are exempt on medical grounds or are under the age of 18. If an employee who is covered by the legislation refuses to get the vaccine, the employer may be able to lawfully dismiss the employee. 

In the health and social care sector, there is primary legislation already in place which has allowed the government to bring in the new regulations on mandatory vaccination with speed and with little scrutiny. Across the board similar primary legislation does not currently exist and therefore a long and more complex process would need to be followed before legislation could be introduced. 

While there isn’t currently legislation in place to enforce mandatory vaccinations for all, the Public Health (Control of Disease) Act 1984 does allow the government to make regulations to prevent, protect against or control the spread of contamination in England in Wales. The government has relied on this act throughout the pandemic to create regulations to restrict the movement of people to control the spread of the virus. Under section 45E of the act it specifically states that the Act does extend as far as requiring a person to undergo medical treatment, this includes receiving a vaccination. The government could however look to tighten restrictions on unvaccinated people, who are not exempt, to put pressure on them to receive the vaccine. 

Can an employer require employees to be vaccinated against COVID-19? 
There is nothing to stop a business from implementing a no jab no job policy in contracts for new employees, as long as it is clear that if a person is exempt from the vaccine (for example on medical grounds), they will not be prevented from working for the company in question.  If a contract term or policy this isn’t clear on this exemption, the company run the risk of discrimination claims being brought against them, which unlike an unfair dismissal claim doesn’t require 2 years’ service. 

No jab- no job? If a company would like to enforce a no jab no job policy in their current employees’ contracts, consent must first be obtained from the employee. If consent is not obtained and the policy is implemented, the employee could bring a claim against the company for a breach of contract and unfair dismissal if they have over 2 years’ service.

What if an employee refuses  the vaccine? If there is legislation in force that requires workers in a sector to be vaccinated and they choose not to be, an employer could either terminate the employment of the unvaccinated employee or deploy them to a role that is not covered by the legislation. The employer could do this in the knowledge that it would have a defence against any breach of contract and/or unfair dismissal claim the employee sought to bring. 
Can employers request the vaccine status of employees? 
A large international accounting firm has recently asked their US employees to report on their vaccine status, they have not however asked their UK employees to do the same due to data protection issues.
In the UK vaccination status is considered to be sensitive personal data as it is health information and therefore the employee’s consent is needed to process this data. As a result, if an employee does not give express consent to their employer to hold such information, or if they refuse to provide the requested information, an employer cannot process or store the data. 

GDPR implications? The Information Commissioners Office (ICO) recently released guidance on the storage of vaccine status which states ‘before you decide to check people’s Covid status, you should be clear about what you are trying to achieve, and how asking people for their Covid status helps to achieve this.’ The guidance also states, ‘your reason for checking or recording people’s Covid status must be clear, necessary and transparent. If you cannot specify a 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.”

So what should employers do about Covid 19 vaccine records? Employers should therefore be cautious in their approach when requesting information on an employee's vaccine status. If an employer does not have a good reason to store this data, then it could be considered unlawful under data protection laws. 
If an employer does have a good reason to store their employee’s vaccine status and the employee fails to provide it, the employer could in some circumstances consider dismissal for ‘some other substantial reason’.

Dismissal for SOSR 'some other substantial reason'? This is set out in the Employments Rights Act as one of five potentially fair reasons to dismiss an employee. To rely on this reason an employer must not only show they have a genuine reason for the dismissal of the employee, but also that the decision to dismiss for this reason was reasonable in the circumstances. 

When applying this reason to vaccine status’ an employer could argue that the information is required to protect the health and safety of other employees and customers and therefore is genuine and reasonable. 
Unfortunately, due to the recent nature of this issue and the backlog at the Employment Tribunal, we are yet to see how the Tribunal will respond to the use of SOSR  as a reason to dismiss an employee who will not disclose their vaccine status. Employers should therefore be cautious in the use of this defence. 

If you have any questions in relation to COVID-19 vaccinations in the workplace, feel free to get in touch with myself or one of the employment team on 01872-317070