With the Covid-19 vaccine rolling out across the country, as an employer, you may be beginning to think about when you can start to get your workplace back to ‘normal’. And whether you can insist your employees have the jab. Head of Employment Law, Fiona Hewitt, answers some of your common questions.
Highly unlikely, except for in very specific circumstances. The Government cannot legally force people to be vaccinated and so in turn it makes sense that employers can’t, either.
Section 2 of the Health and Safety at Work act 1974 requires employers to take all reasonably practicable steps to reduce workplace risks to their lowest practicable level. Reasonably practicable is the key here. Procuring the vaccine and offering it to staff would not be reasonably practicable, not least due to supply issues but employers may well be obliged to strongly encourage staff (where appropriate) to have the vaccine when offered. Until then, employers should still be encouraging their staff to work from home or, if that is not possible, to make every effort to make the workplace safe.
Most employment contracts will provide that staff must follow reasonable management instructions and that failure to do so will be a disciplinary offence. So, is asking a member of staff to have the vaccine a ‘reasonable instruction? It will depend on the circumstances; the most of important of which is whether the vaccination will protect other members of staff or people with whom they work such as patients, school children or vulnerable people (subject to other considerations - see below). So, it may be a reasonable to instruct front line staff to be vaccinated but not reasonable to require this of, say, an office worker who can work from home (or safely in the office) and who have limited contact with others.
Care will need to be taken to consider the reason that the individual is refusing. Although the vaccine is widely approved, there are reasons why someone may not be recommended to have or may choose not to have the vaccine. If someone is recommended not to have the vaccine because, for example, they have severe allergies then it would be reasonable for them to refuse.
Others may choose not to have the vaccine. It is worthwhile considering that the current statistics suggest that some groups of people appear to be more reluctant to have the vaccine than others. It is important to share reliable and impartial information before deciding that the person is failing to follow a reasonable instruction and to consider their personal views to ensure that you are not falling foul of the Equality Act 2010 by discriminating against the employee. If you do decide to take action against someone who refused to follow a reasonable instruction, then you must follow a proper process.
If you can establish that it’s a reasonable instruction to be vaccinated, then you will need this information to check compliance. Information about someone’s vaccination status will be sensitive personal health data so you should be careful to comply with GDPR. If you cannot establish the reasonable instruction, then you should not be asking for this information unless you have a lawful reason for needing to know.
It’s easy to get this wrong, particularly as the situation is so new to us all, so we would strongly suggest that you take proper legal advice.
Fiona can provide the support and guidance you need to manage your personnel in the best way possible and advise on you how to avoid the pitfalls that can have costly and time consuming consequences.