Associate solicitor Laura Binnie, in leading law firm Blandy & Blandy’s employment law team, answers the question. With the UK’s (so far) successful vaccine rollout, the largest in the country’s history, continuing at pace and the majority of the non-working adult population expected to have received their first immunisation by mid-February, the question among many is ‘what next?’
As and when schools reopen and the economy kick-starts, following what is expected to be a gradual easing of restrictions, both employers and their employees may be left wondering where they stand legally when it comes to having a covid vaccine and eventually returning to the workplace.
General Data Protection Regulation (GDPR)
The Information Chief Commissioner’s Office (ICO) has stated that information relating to an employee’s health is considered to be special category personal data; ‘personal data that needs more protection because it is sensitive.’
The ICO’s guidance explains: “In order to lawfully process special category data, you must identify both a lawful basis under Article 6 of the UK GDPR and a separate condition for processing under Article 9. There are 10 conditions for processing special category data in Article 9 of the UK GDPR.”
Employment law considerations
Employers will of course be conscious of existing health & safety legislation, under which employers have a duty of care towards their employees to protect their health and indeed, anyone else on their premises or affected by the business’ operations. The possibility however of ‘requiring’ members of staff to be immunised against Covid-19 is far from straightforward and certainly would carry legal complications.
The Government has not made the vaccines mandatory, and therefore in principle, it would be difficult for employers to set out such a requirement, even in areas of ‘front line’ work. That said, some studies have suggested that a number of employers do plan to require their staff to be vaccinated. To this end, an employer may seek to insert a clause into existing employment contracts requiring employees to have a covid vaccination. However, an employer cannot do so without first establishing that the clause is “reasonable” and discussing the subject with and gaining the agreement of affected employees – without this, imposing such a change would be unlawful. A change may be easier to justify and implement with regards to new hires but the above still applies. Such a drastic approach also leaves businesses in difficulty if some staff simply do not consent.
Employers will need to decide if they feel they have reasonable grounds to ask employees if they have been vaccinated, to do so, or what their reasons for not doing so are.
If employees agree to the collection and processing of their health data, employers should reflect this in their employment contracts and policies (i.e. handbook).
Employers must not allow this data to be shared in any way, without an employee’s express consent, and they must take reasonable steps to ensure that it is not possible for employees to determine who has and has not been vaccinated based upon any information that is shared.
Risk of claims
Practically speaking, a period of adjustment when returning to the workplace and to a greater degree of normality is to be expected. To avoid unnecessary issues or potential claims, employers may wish to adopt a more patient and flexible approach (where possible) when discussing and setting out timescales and expectations with employees. Proactive consultation and good communication with employees is always to be recommended, especially in these untested waters.
For example, disciplining an employee who opts out of receiving a vaccine may well result in not only an internal grievance and/or perhaps sick leave, but also possibly a claim for constructive unfair dismissal. Discrimination claims under the Equality Act 2010 could also be pursued, if the employee’s decision is linked to any protected characteristic, for example, their refusal is on religious grounds or due to the fact that a disability prevents them from being vaccinated (or is the basis of their decision not to be).
While employers can certainly encourage staff to think about the benefits of receiving the vaccine (and the take up is likely to be relatively high in any event), moving quickly to a mandatory approach is unlikely to be a productive strategy, especially in sectors without key workers. A more practical and useful approach may be to think about a full risk assessment in relation to future covid risk at the particular employer’s place of work, of which the vaccine will be an important, but not sole, factor. We would also suggest considering having a Handbook policy in relation to this so that employees understand the business’ expectations and the ways in which they plan to keep risk levels low.
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