By Alec Colson, Partner and Head of Employment Law at Luton-headquartered law firm Taylor Walton (www.taylorwalton.com)
With some business- es publicly expressing an intention to make the COVID-19 vaccination a condition of employment, it’s important that the issue is considered thoroughly before policies are introduced.
Currently, there is no legal provision that permits an employer to make the vaccine a requirement, but with an increasing number of organisations expected to look down this route, the legal position must be navigated carefully.
Simply put, compulsory vaccines is a legal minefield and employers must exercise caution when they approach the matter, so they do not breach any strict rules or guidelines.
As detailed in section 2 of the Health and Safety at Work Act 1974 (HSWA 1974), an employer must take all reasonably practicable steps to reduce workplace risks to their lowest possible level. Under section 7 of the same act, it is an employee’s duty to cooperate with the employer, so that it can comply with statutory requirements, such as reducing workplace risks.
Not only this, but employees will want to be reassured they are working in a safe environment. However, it is unlikely that this will extend to vaccines becoming a legal requirement across all business sectors and we will have to wait for further Government guidance on what measures an employer may be required to take.
The meaning of “reasonableness” is likely to depend on the business sector of the employer and the services it provides. For example, the request of an employer operating in the social care sector for its employees to take the vaccination could be argued to be a ‘reasonable management request’ as refusing to take the vaccination could pose severe risk to fellow employees and patients and thereby threatening the business.
Therefore, dismissal in such circumstances could fall within the range of reasonable responses for the employer to dismiss the employee fair- ly, either on conduct grounds or for some other substantial reason. RELIGION AND BELIEF
It is unlikely that an “anti-vax’ belief amounts to a philosophical belief for the purposes of the Equality Act 2010. However, not all vaccines in production have released their list of ingredients and it is possible that gelatine may have been used in some vaccines or in its production process and therefore, an employee with certain religious beliefs or vegans may have religious or philosophical grounds for refusing to take the vaccination.
PREGNANCY AND MATERNITY DISCRIMINATION
Public Health England advice states that “women should be advised not to attend for vaccination if they are, or may be, pregnant, or are planning a pregnancy within three months of the first dose. Vaccinated women who are not pregnant should be advised to avoid becoming pregnant for two months after the second dose of vaccine”.
Therefore, a requirement to take the vaccine as a condition of employment for a pregnant employee, or an employee planning a pregnancy, is likely to amount to sex discrimination, pregnancy/maternity discrimination.
Personal data collected in connection with an employee’s vaccination records will be sensitive personal data or special category personal data and will need to be processed in accordance with GDPR. But is it legal to collect such data?
The answer to this is whether the employer, as a data controller, has a legitimate interest or legal obligation to collect vaccine information due to the nature of their business. A care home owner may well be justified or may become legally obliged to do so whereas for an office role, the requirements to have such information is less clear cut.
At first glance, making the COVID vaccine a condition of employment seems like a reasonable way to keep colleagues and clients safe, particularly in the care sector where a lot of patients are considered vulnerable. However, the legal position is a lot more complex than meets the eye and businesses must consider individual circumstances before implementing policies.
From a business perspective, it is important to stay up to date with the latest Government public health guidance, so that policies can be adapted accordingly. Remember, the vaccination rollout may be the light at the end of the tunnel, but the pandemic story still has a long way to go yet.