Acas advises employers to encourage and support their staff without making vaccination a requirement, for example, by offering paid time off to attend vaccination appointments.
The Acas guidance previously acknowledged that employers may need to make vaccination mandatory where it is necessary for an employee to do their job, for example, where they are required to travel overseas to countries which require visitors to be vaccinated. However, this wording was removed by the 25 February 2021 update to the Acas guidance.
In April 2021, the EHRC warned that blanket mandatory vaccination policies, applied inflexibly, are “likely to be unlawful” due to vaccination not being suitable for everyone as well as the discrimination risks.
In the absence of vaccination becoming a legal requirement, an employer cannot force an employee to be vaccinated without their consent. Vaccination without consent could amount to the criminal offences of assault and battery. However, an employer could decide to prevent unvaccinated employees from entering the workplace, or restrict their duties. This could in turn adversely impact an unvaccinated employee’s pay.
An employer considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:
- Vaccination is not suitable for everyone.
- Requiring an employee to be vaccinated without their consent as a condition to providing work could amount to a repudiatory breach of contract, entitling them to claim constructive dismissal.
- A mandatory vaccination requirement could indirectly discriminate against employees with certain protected characteristics and breach Article 8 and 9 of the ECHR.
- Currently, private vaccination is not available. Individuals must wait their turn, in order of priority, to be offered vaccination. Allowing only vaccinated employees to return to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees, although both direct and indirect age discrimination can be justified.
- Employers may find it difficult to justify a mandatory vaccination requirement on health and safety grounds. Although vaccination reduces the chance of the vaccinated individual contracting COVID-19, the extent to which vaccination reduces transmission is still under review. (PHE states that the evidence on this is “less clear”, but that vaccination shortens the viral shedding period so it is “less likely” that vaccinated workers will pass on COVID-19 to others. Further, it is unknown how long the protection offered by vaccination will last. The current advice is clear that vaccination is not a substitute for workplace COVID-secure measures, which employers must continue to comply with.
- Imposing a mandatory vacation requirement could result in negative publicity for the employer which could have a detrimental impact on business profitability, employee retention and recruitment.
- There is a very small risk that vaccination could have long-term, adverse side effects for some individuals, which may concern a cautious employer. An employee who was compelled to receive the vaccine and who suffers an adverse reaction may attempt to bring personal injury proceedings against the employer.
- Consultation with workplace and health and safety representatives, and with trade unions, is likely to be required.
- The data protection implications of requiring employees to provide information on their vaccination status, verifying its accuracy and retaining that data.It is unclear whether asking a candidate their vaccination status could be a prohibited health question in some circumstances under section 60 of the EqA 2010.
- Other than in the circumstances set out in section 60(6), a person (A) to whom an application for work is made must not ask about the health of the applicant (B) either:
Can an employer ask whether a candidate has been vaccinated as part of its recruitment process?
It is unclear whether asking a candidate their vaccination status could be a prohibited health question in some circumstances under section 60 of the EqA 2010.
Other than in the circumstances set out in section 60(6), a person (A) to whom an application for work is made must not ask about the health of the applicant (B) either:
- Before offering work to B.
- Where A is not in a position to offer work to B, before including B in a pool of applicants from whom A intends (when in a position to do so) to select a person to whom to offer work. “Offering work” is defined as “making a conditional or unconditional offer of work” (section 60(10)). Therefore, “job offers can be made conditional on satisfactory responses to pre-employment disability or health enquiries or satisfactory health checks” (EHRC Code, paragraph 10.39). However, employers must not discriminate against job applicants in response to the results of such enquiries or checks. Section 60 does not define in detail what a question “about the health of the applicant” might include. A question concerning a job applicant’s vaccination status could be unlawful unless it falls within one of the limited circumstances in which a health question can be asked under section 60(6). These include questions relating to:
- The purpose of section 60 is to ensure that disabled applicants are assessed objectively for their ability to do the job in question, and that they are not rejected because of their disability (EHRC Code, paragraph 10.27).
- (Section 60(1).)
- The candidate’s ability to carry out a function that is intrinsic to the job (section 60(6)(b)).
- Reasonable adjustments needed for the candidate to carry out the job (section 60(7)).
The employer should not ask such questions until after it has made a job offer to the candidate, unless the questions relate to a function that is intrinsic to the job (EHRC Code, paragraph 10.42).
Human rights issues
There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual’s Article 8 right to privacy, particularly when there are other, less invasive ways to minimise the risk of transmission in the workplace. Employees who reject vaccination because of their religion or belief may also be able to rely on Article 9 (freedom of thought, conscience and religion).
The UK remains a signatory to the ECHR post-Brexit. UK courts are required, as far as possible, to interpret all legislation in a way that is compatible with the ECHR (section 3, Human Rights Act 1998 (HRA 1998))