At present, there is no legal requirement for people to have the Covid-19 vaccination. However, Employers are likely to strongly recommend that their workforce are vaccinated to ensure a safe working environment and in some circumstances, it may be considered as a “reasonable management instruction”.
Are there any pitfalls or risks to the Employer?
Any difference in treatment between those who have been vaccinated and those who have not may amount to indirect discrimination and the Employer could fall foul of the Equality Act. When considering the current vaccine roll out criteria, Employee’s may assert one or more of the following protected characteristics in presenting a claim for discrimination:-
- Age
- Disability
- Pregnancy and maternity
- Religion or beliefs
What action should Employers take?
All businesses are different and some such as those working with vulnerable people or those in the health care sector will have strict controls in place. If an Employer requires its workforce to be vaccinated then this should be communicated and encouraged by outlining the benefits and how vaccinations will make for a safer workplace.
Employers may wish to back this up with a written policy but certain changes to employment contracts will require Employers to consult with its staff. If you need assistance in preparing your policy please contact our employment experts on 0161 694 4155.
What if an Employee refuses to be vaccinated?
We are yet to see any reported cases reach the Employment Tribunal in respect of claims for unfair dismissal or discrimination following a refusal to be vaccinated. In certain circumstances, it may be considered fair to dismiss an Employee for “Some Other Substantial Reason” if they refuse to comply with a reasonable management instruction. However careful consideration must be given to the potential for such action being unfair or discriminatory.
Our advice is to proceed with caution but consideration must be given to:
- The Employees reason for refusal
- The implications the refusal may have on the rest of the workforce
- Whether the request is a reasonable management request
- Any discrimination issues
- Health and safety requirements.
Can Employers refuse entry to the workplace if an Employee has not been vaccinated?
All Employers have a duty of care to protect its workforce and, refusal to the workplace should be the last resort. If an Employee refuses to have the vaccine then consideration must be given to the following before refusing entry to the workplace:
- Can the Employee work from home?
- Can additional PPE and social distancing measures be put in place?
- What are the risks of the Employee attending?
- Have individual circumstances been taken into account?
- What impact would their attendance have on the rest of the workforce?
- What are the consequences of refusing entry?
- Are there any potential risks of discrimination?
What are the data protection implications?
Employers who require evidence of the vaccination will need to consider data protection issues. If they felt evidence was required and appropriate for their business, Employers would be required to complete a data protection impact assessment which would need to consider the following:
- Why is the data required?
- How much data is required, would a simple ‘yes’ or ‘no suffice?
- How will the data be held?
- Who will have access to the data?
How we can help
To find out how we can assist, contact our experts on our dedicated Employment helpline on 0161 694 4155 for your free initial telephone discussion. If you prefer, you can fill in our online form or alternatively, you can email us on bromleys@bromleys.co.uk and we’ll call you back.