With office spaces in the UK starting to reopen and employers making arrangements for their employees to return to the office either full time or part time, many questions are being asked with regards to where to employees stand if they do not feel comfortable returning to the office environment or doing the commute on public transport. We try to answer some of the questions raised to shed some light on what are employees rights when it comes to employers asking employees to have the Covid-19 vaccine.
Can my employer ask me if I have had the Covid-19 vaccine before I return to the office?
Your employer can ask if you have had the Covid-19 vaccine. However, they need to be aware that there may be data protection implications. Holding information on whether an employee has had the vaccine is likely to be considered a ‘special category’ under data protection law. As this data is sensitive, your employer must have additional safeguards in place to protect it.
Can my employer insist I have the coronavirus vaccine and how does this compare to requesting employees get tested?
Your employer can make it a workplace requirement that staff should be vaccinated, if this is reasonable in all the circumstances. There may be some situations where a requirement for employees to have the vaccine is reasonable and more importantly necessary, such as within healthcare. However, many employers may find it difficult to justify such a requirement, particularly where other safety measures are available, such as social distancing and wearing face coverings.
Many employers will wish to ensure the safety of their staff and both testing, and the vaccination is going to play an important part in enabling workplaces to open back up. Nevertheless, the vaccination is a medical procedure, which will carry its own risks and may not be suitable for everyone. As a result, there will be different legal considerations and implications to employee testing.
What if an employee refuses to be vaccinated, does this pose an issue for other employees in the office?
Employers do have a legal obligation to ensure the health and safety of their workforce as far as reasonably possible. While requiring that employees have the vaccine may be a means of fulfilling those obligations, such a requirement can only be obligatory if it is reasonable in all the circumstances.
Where the requirement is not reasonable, employers will need to rely on other measures to ensure the safety of employees, such as social distancing and the wearing of face coverings. The outcome of how effective the vaccination is and to the extent to which people who have been vaccinated still spreading the virus, is still to be seen. The current UK guidance is that these alternative safety measures should continue to apply to everyone, including those who have been vaccinated.
What else can employers do if vaccinations cannot be made compulsory?
Employees should be encouraged by their employers to have the vaccine (assuming they can have it) by providing them with some guidance. Current UK guidance suggests that employers should support members of staff in getting vaccinated and talk to them about the benefits of vaccination in addition to continuing with the other protective measures such as social distancing and wearing face coverings.
What are my rights as an employee if I refuse to get vaccinated?
Some people will not be able to have the vaccine due to certain circumstances that are protected under UK discrimination law (such as pregnancy or disability). If an employee is not able to have the vaccine because of a protected characteristic and their employer treats them less favorably than other employees who have been vaccinated, for example, if the employer disciplines or dismisses them – this could lead to a discrimination claim.
In most cases, it is likely employers will find it difficult to justify requesting employees to be vaccinated as reasonable and therefore dismissing an employee who refuses to comply, could be considered unfair. In those circumstances, employees may have claims for unfair dismissal, provided they meet the applicable length of service requirement.
All employees have an implied duty to obey their employer’s reasonable instructions. Should an employee refuse to have the vaccination who has no medical reason or who is not protected by UK discrimination law, it would be in the employers’ interest to hold a conversation with the employee to understand their reasons and to offer some guidance as to the benefit not only for themselves but for their fellow workers.
Anna Craig, Managing Consultant, Bradfield HR