To jab or not to jab – considering compulsory COVID vaccinations

Over the last year, employers have faced many new and challenging decisions as a result of the pandemic.

Many of these have required a delicate balance between the interests of their organisations, individual rights and freedoms, and health and safety duties.

The issue of compulsory COVID vaccinations continues to be one of the most contentious. We are still receiving a huge volume of enquiries from clients who have questions around whether to make testing, and now vaccinations, compulsory for their employees.

In the FAQs below, we provide legal guidance for employers, based on commonly asked vaccination-related questions we have received. This issue is also covered in more depth in our recent webinar.

Compulsory COVID vaccinations – FAQs for employers

1. Can I make it a condition of employment for my new employees to have had the vaccine?

The key employment law considerations in relation to this question are likely to relate to individuals’ rights not to be discriminated against because of a protected characteristic.

Currently the following will be relevant:

• The vaccine programme is progressing at pace. However, it is currently largely based on age, relevant health conditions, and whether the person is a key worker. This means that insisting all new employees are vaccinated currently potentially disadvantages younger recruits who are not yet eligible. An option could be to make ongoing employment conditional upon acceptance of a vaccine when offered but age discrimination issues will remain a potential concern until a full roll out of the vaccination programme.
• Disability discrimination – the vaccines are not suitable for everyone. Where a recruit has a medical condition which means they should not have a vaccine, this is likely to give rise to questions of whether that individual is being discriminated against for a reason relating to a qualifying disability.
• Religion and belief – some individuals hold strong anti-vaccination views. This raises the issue of whether these views mean that they could validly claim discrimination on the grounds of a qualifying philosophical belief. Cases would be decided on their own facts, but commentators have questioned whether strong anti-vaccination views will impact on the way individuals live their lives sufficiently to trigger rights under these provisions.
• A policy of compulsory vaccination for new recruits could have implications for the age/ethnic makeup of an organisation. Evidence indicates some people are more hesitant to take a vaccine than others.

Our view is that as an employer it is likely you could legally introduce a vaccine requirement for new employment. However, you would need to show that there are compelling reasons for doing this. For example, organisations providing healthcare services or those who work with vulnerable people in their homes. Employers must also consider reasons where people do not consider they can meet this requirement.

Adverts or guidance given to applicants would need to make it clear that if they do not think they can meet a vaccine requirement, their reasons will be considered.

2. Can employers make it compulsory for existing employees to have COVID vaccinations?

• Vaccination is already compulsory for some people in the UK. For example, clinicians working within the NHS are obligated to accept certain vaccinations to protect their patients. However, wider application has not been seen and is largely untested.
• It is unlikely your existing employment contracts will contain a provision allowing you to insist that employees get a particular medical treatment, in this case a vaccine. This does not mean that you will not be able to insist current employees are vaccinated. However, the likely route to enforcement would be via possible dismissal if employees refuse.
• To show dismissal decisions are justified (particularly for individuals with more than two years’ service) you will need to prove that your decision is fair. You will need to show compelling reasons, and demonstrate that there are no other reasonably practical means of mitigating the risks associated with COVID-19. For example, through PPE requirements and social distancing. Introducing a vaccine requirement would also need to be clearly communicated to your employees. We recommend you also clearly explain the justifications for any new rules that are introduced.
• It would in theory be possible to make a vaccine compulsory for health and safety reasons. You would have to have carried out appropriate risk assessments to do so. Also, for obvious reasons, the fairness and reasonableness of such a decision is likely to be easier to establish in, for example, a healthcare setting, than in an office environment where staff can work from home and social distancing can be achieved.
• You will need to carefully consider any new recruits’ reasons for not being able or willing to accept a vaccine before any decision to dismiss is made. Alternatives must be considered where possible, and a fair procedure followed.

3. Can we insist employees tell us if they are vaccinated?

Information about whether someone has had a vaccine is health information and is considered a special category data under data protection law.

Employers will need to carry out a data protection impact assessment before implementing a process of trying to collect this data. There must be a lawful basis for you obtaining and then holding this information.

The Information Commissioner’s Office (ICO) has issued helpful guidance on collecting vaccine data:

• Data protection and coronavirus – advice for organisations (ICO)
• Coronavirus (COVID-19) workplace testing: guidance for private-sector employers and third-party healthcare providers (GOV.UK)
• Get coronavirus tests for your employees (GOV.UK)

4. What about workplace testing?

Many employers have already introduced workplace testing and the government is currently encouraging businesses to go down this route.

A testing programme may be a practical alternative to requiring employees to be vaccinated. We recommend reviewing the helpful guidance on testing programmes available from the government and the ICO on this issue.

Feedback from delegates at recent webinars and events we have spoken at have shown that employers in Kent are increasingly looking to introduce testing programmes, potentially as more plan for a return to work in the coming months.

Whilst there appeared to be an initial reluctance to introduce a compulsory vaccine requirement, more employers have indicated to us that this may be something they will be considering.

Further support

For further guidance on compulsory COVID vaccinations, or wider employment law advice, please take advantage of our free 30-minute initial consultation with our employment specialists.

For guidance for employers on returning to work, register for our free webinar on Tuesday 18 May.

This content is correct at time of publication