COVID-19 Vaccination and the workplace

The COVID-19 vaccine is a topic of conversation for many people at present, and workplaces are no exception.

Employers need to consider several issues which have the potential to cause problems. Here are some FAQs the team at rradar, a specialist litigation and commercial law firm and McClarrons Care Network member, have encountered.

Can an employer insist on its workforce being immunised against COVID-19?

At present, there is no legal right for an employer to insist that any current or new employee receives a vaccination for COVID-19, even where the employee is a key worker, such as someone in the NHS or social care sector. Article 8 of the European Convention on Human Rights provides everyone with the right to a private life and being coerced into agreeing to a vaccination could be viewed by employment tribunals and courts as a breach of a person’s bodily integrity, which in turn is a breach of Article 8.

This applies whether or not there is a contractual clause for the employer to provide the employee with a vaccination, or for the employee to have a vaccination at the request of the employer either prior to – or during the course of – their employment.

Is the vaccine covered under the employer’s duty of care responsibilities?

Under the Health and Safety at Work Act 1974 and the Control of Substances Hazardous to Health Regulations 2002, employers do have a responsibility to protect the health and wellbeing of their employees.

If an employee might come into contact with a biological agent which may cause ill health, such as COVID-19, the employer is required to have effective control measures in place.

Such measures can include offering a vaccination programme to employees, the key word here being ‘offering’ not ‘enforcing’. It can also include other measures which are just as important, such as regular testing and PPE.

Measures need to be maintained in the workplace to help prevent the spread of COVID-19, including the current COVID-secure H&S standards and regular risk assessments to identify and minimise any risks.

What can an employer do if an employee refuses to have the vaccine?

Where employees are unable to – or do not wish to – receive a vaccination, the employer should always consider what alternative reasonable adjustments could be used instead and that still comply with health & safety requirements.

An employee who refuses to give their consent to be vaccinated, whether prior to – or during – the course of their employment, cannot be physically forced to have a vaccination, as doing so would amount to an assault.
Some examples of grounds of refusal could be, but are not limited to:

  • Medical reasons or a fear of medical repercussions, side effects or allergic reactions from having the vaccination.
  • A phobia of needles, vaccinations and/or of medical
    procedures.
  • A religious belief – a handful of religions do uphold a theological objection towards immunisation and vaccinations, or to the ingredients of the vaccines.
  • A genuine philosophical belief – such as a genuine disbelief of the reported scientific benefits, believing instead that naturally built-up immunity is best.

Where an employee has refused a vaccination for a genuine reason, especially for reasons as mentioned above (some of which relate to a protected characteristic), the employee should not be subjected to any detrimental treatment as they may look to bring a claim against the employer through an employment tribunal.

Can I implement an immunisation policy in the workplace?

To implement an immunisation policy, a company will need a clear communication strategy in place, which should include a platform for employees to raise any questions or concerns they may have around the request that they receive a vaccination.

Where the organisation has a recognised trade union and/or a collective agreement in place with a trade union, it is important that employers collaborate with the union(s) to deliver clear and precise communication to all employees. This includes consulting with the union before introducing any plans to deliver a vaccination programme, immunisation policy or issuing requests for employees to have a vaccination.

What should an immunisation policy include?

At the very least, a clear immunisation policy should cover:

  • Full explanation of the requirement for the immunisation
  • The employer’s and employees’ responsibilities under the policy
  • To whom it applies
  • How it will be applied
  • How data will be stored and processed, in like with GDPR and Data Protection
  • Terms of pay for any period of suspension from duty intended to prevent the spread of infection
  • Consequences for non-compliance with the policy.

However, having an immunisation policy in place and a clause within the contract requiring vaccination does not provide an employer with the right to automatically dismiss someone should they decline to have a vaccination.

Can I dismiss an employee who refuses to have a vaccine under misconduct or SOSR (Some Other Substantial Reason)?

Each case would need to be carefully reviewed to assess the full facts and context. Such a case review would include things like the measure of risk posed by the employee not having received a vaccination and why that risk could not have been lowered or removed using other measures.

The reasons given by that person for their refusal to receive a vaccination would also need to be carefully considered, along with evidence of any reasonable adjustments which were considered first.

Any action taken must always be within the range of reasonable responses, and the dismissal must be proven to be fair in accordance with the Employment Rights Act 1996, regardless of whether the employer had chosen to classify the dismissal as misconduct or SOSR.

If you are thinking of going down this route, we would recommend you seek legal advice first before starting the process.

Can a resident/service user request care is provided by only staff who have been vaccinated?

It is possible for a resident or service user to evoke their right to request care by only people who they wish to be cared for. Such a request will need to be carefully analysed to see if it could be a proportionate and legitimate means request under equality law, such as a Jewish person refusing to be treated by someone who is trans as they believe changing your gender is against their religious belief.

Where the resident has no proportionate means for making that request, their request may in fact then become an act of discrimination. For example a white person being asked to be treated by only white carers, without any proportionate reason. In that situation it the request may become a matter of discrimination in which case the employer is then duty bound to protect their employee from such treatment, and may choose to withdraw care to the resident on the basis they cannot meet their request.

In the above circumstances, if a carer has not been vaccinated and there are no longer enough hours for them to work can they be made redundant?

Where a resident refuses treatment by a carer they believe is not vaccinated, then the resident may refuse care from that person on the grounds that they have a genuine reasonable belief that scientifically they have a greater calculated risk of being given COVID-19 virus by an unvaccinated carer, when compared to a vaccinated carer. That could be seen as a proportionate and legitimate reason to request vaccinated carers only, especially given the early stages of the vaccination programme and the fact we are still in the pandemic with a significant risk to the life of extremely clinically vulnerable individuals.

Regard would need to be given as to why the employee has not been vaccinated, or why the employee refuses to confirm to the resident whether they have had the vaccination or not, as we need to be mindful of the protected characteristics which govern peoples reasons for not having the vaccination and the right to not disclose medical records.

In that situation the employer would need to conduct a thorough assessment of the risks, and the measures in place to try and seek a resolution. Such resolutions could be increased PPE, enhanced H&S measures or adapting the care plan so that carer is removed from close personal care and only delivers medication for example.

Where that is not an option, the next stage would be to look at redeployment opportunities for the employee within the business to move them to another service, or caring for other residents.

If both options have been reviewed and thoroughly considered, but there is no option to go through with either of them, then the final last resort option would be a dismissal on the grounds of SOSR “some other substantial reason” under the category of 3rd party pressure from the resident refusing treatment by that employee, and the resident having proportionate and legitimate reasons to do so. A fully documented process would need to be undertaken in order to prove that this was a proportionate means of achieving a legitimate aim, and every step taken first to review other options before the final last resort option of dismissal was undertaken.

About rradar

rradar is a specialist litigation and commercial law firm that uses legal expertise and digital tools to proactively educate, manage, advise and deliver business solutions to reduce legal risk. rradar’s team of lawyers can provide specialist care sector knowledge and expertise, advising and representing a diverse commercial client base in areas of HR and Employment, Business Crime and Regulation (including Health and Safety and CQC investigations), Commercial Disputes, Corporate and Commercial Law and Cyber, Data and Information Law.

This makes rradar a powerful advocate and champion for businesses, allowing them to navigate and evolve in an everchanging environment of regulation, compliance and litigation risk.

For more details, please contact Matthew Coles at matthew.coles@rradar.com or McClarrons’ Care Team at care@mcclarroninsurance.com

We are proud to have rradar as one of our McClarrons Care Network members.

This article is for guidance only. No action should be taken without first obtaining legal advice. rradar ltd is a licensed body authorised and regulated by the Solicitors Regulation Authority under: No 608114.

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