UK Update: Our top tips related to COVID vaccination issues in the workplace

As restrictions begin to relax and people return to the office, we share our top tips on what businesses should consider when contemplating whether to introduce a vaccination policy in the workplace.

1. Think carefully about whether it is appropriate in the context of your workforce to introduce rules on vaccination in the first place

The starting point is that employers have an overarching duty to provide a safe work environment for all. They must ensure the health, safety and welfare of their workforce and anyone affected by their work activities. That includes taking steps to reduce the risk of transmission associated with COVID-19.

When vaccines first became available, we heard of several employers – including Pimlico Plumbers – announcing that they intended to introduce “no jab, no job” policies, whereby vaccination would be a prerequisite of employment.

Since then there have been a number of significant developments: the vaccination rate amongst the eligible population in the UK is high; work from home guidelines have been relaxed; and the UK government looks set to U-turn on the mandatory vaccination requirements introduced in November 2021 for those working in elder care home settings, and which was due to come into force for frontline health and social care workers in April 2022.

In this context, it is important to think carefully about whether it is appropriate to introduce a workplace policy on vaccinations for your workforce. What is it about the nature of the work that you undertake, the setting in which that work is undertaken and/or the demographic of your workforce that means such a policy is necessary to discharge your duties to provide a safe work environment?

Introducing any workplace policy which differentiates between employees based upon vaccination status will clearly give rise to legal considerations. But it is also important to think about the practical consequences. Would this be welcomed by the workforce or lead to employees looking for jobs elsewhere?  It seems likely that part of the reason for the Government’s U-turn in the health and social care sector was the concern that this would lead to an exodus of health workers at a time when the NHS is already under pressure.

2. Consider what type of policy is appropriate

Changes to self-isolation rules in the UK mean that fully vaccinated close contacts of confirmed COVID-19 cases no longer need to self-isolate.  This has led to some high profile employers deciding that those who are required to isolate due to their unvaccinated status should not be entitled to receive company sick pay (above any statutory sick pay entitlement).

On one view, this could be seen as a means of encouraging workers to get the vaccine which is inherently less risky than a “no jab, no job” policy.

3. Ensure that you have evidence in place

In the event that you decide a vaccine mandate is necessary, make sure your approach is supported by medical and scientific evidence.

The recent decision of Leeds Employment Tribunal in Allette v. Scarsdale Grange Nursing Home Limited provides a helpful insight into how an Employment Tribunal may assess the fairness/reasonableness of a workplace requirement for vaccines.

The case related to a care assistant working in a nursing home who had refused to be vaccinated. This was treated by her employer as a failure to follow a reasonable management instruction and she was summarily dismissed on grounds of gross misconduct.

Her dismissal had taken place in February 2021 – i.e. prior to the introduction of the Regulations requiring vaccination in the elder care home sector (which now look set to be revoked).

In determining that the employee’s dismissal was fair, the Employment Tribunal was clear that the employer’s instruction had to be assessed in the context of the state of the pandemic at the time. In February 2021, case numbers were high and care homes were being ravaged by infections. Scarsdale Grange Nursing Home had itself recently suffered an outbreak which had led to the deaths of several residents. The advice from Public Health England at the time was that vaccination was the best means of protecting vulnerable groups and the Government’s Medicines and Healthcare Regulator Agency (as well as the World Health Organisation and other advisory groups) were advising that vaccines were safe.

The employee claimed that the employer’s instruction interfered with her right to privacy under Article 8 of the European Convention on Human Rights.  As an emanation of the state, the Employment Tribunal was required to apply the law in a way which was compatible with Convention rights.

The Tribunal decided that the employer’s instruction for the employee to get vaccinated interfered with her physical integrity such that her Article 8 right to privacy was engaged.

However, it ultimately determined that interference with that right was justified in the circumstances. The employer had a legitimate aim of protecting the health and safety of the residents, staff and visitors to the care home. Further, the Article 8 rights of other affected parties – in particular, the care home residents – had to be taken into account. The home’s residents suffered with dementia, and some may not have had the capacity to exercise choice over whether they came into contact with unvaccinated people. As such, an unvaccinated person working in the home would pose a significant and unjustified interference with their Article 8 rights. The employer’s requirement for the Claimant to be vaccinated was therefore justified.

From this judgment we can see that an Employment Tribunal will carefully scrutinise an employer’s rationale for introducing rules around vaccination. The employer in this case was able to demonstrate both that there was evidence to support that vaccinating staff was necessary for the safety of its residents and that this evidence had been considered and communicated to staff at the time the vaccination requirement was introduced.

4. Consider data protection issues

Remember that gathering information about which employees have (and have not) been vaccinated will give rise to data protection considerations. From a data protection perspective, such vaccine data would be considered “special category data” in that it relates to employees’ health. As special category data, vaccine data attracts additional protections because of its sensitivity.  For UK employers to hold and utilise such data, they would need to be able to justify the use of the data with reference to specific grounds and purposes set out in the UK General Data Protection Regulation.

Applicable grounds could include that the vaccination data is necessary – for reasons of public interest in the area of public health, for meeting an employer’s obligations under employment law or for the defence of legal claims.  Ultimately, the validity and applicability of these grounds will depend on how credibly it can be argued that the vaccination data is truly necessary for the purposes pursued.

The Information Commissioner, who is responsible for the enforcement of the UK GDPR, has advised that if an employer cannot specify a use for this information and is checking it on a “just in case” basis, or if the employer can achieve its goal without collecting this data, it is unlikely to be able to justify collecting it.

As well as having lawful grounds under UK GDPR in place to justify holding such data, organisations will have additional data protection requirements to consider.  In particular, communication with staff will be key and should fully set out the reasons why the collection of the vaccine data is deemed necessary.

The organisation should update their staff data protection policy or privacy notice to provide specific details about what will be done with the vaccine data, how long that data will be held for and who it may be shared with.

The data relating to vaccinations will need to be kept subject to all the appropriate protections against loss or unnecessary disclosure – and, as with all sensitive health data, systems should be put in place so that the information is only accessible to those who strictly “need to know” the information (e.g. HR or management).

5. Communicate with staff

An essential element of any successful workplace policy on vaccinations will be communication with staff – either directly or via trade unions or employee representative forums. It will be critical that staff understand the reasons why an employer is proposing to introduce such a policy, and the steps it has taken to decide that such a policy is necessary. Staff views should be sought prior to the implementation of any such policy.

Critical to the Employment Tribunal’s finding that Ms. Allette’s dismissal was fair in the Employment Tribunal case referenced above was the fact that the employer had engaged with her to explain the reasons why it considered it necessary to require staff to get vaccinated and had directed her to sources of information which explained the safety and effectiveness of the vaccines.

6. Consider additional risk factors

If introducing any policy which will lead to unvaccinated staff being treated less favourably than vaccinated staff, it will be important to consider additional risk factors, such as potential discrimination claims.

Late on in the disciplinary process in the Allette case, Ms Allette had sought to argue that she was a practising Rastafarian and that it was against her religious beliefs to take any form of non-natural medication. The employer had no knowledge that the employee was a Rastafarian and took the view that this was not the basis of her decision to refuse to be vaccinated. It concluded that this was nothing more than a cynical attempt to lay the groundwork for a discrimination claim.

Happily for the employer, the Employment Tribunal agreed that Ms Allette’s principal reason for rejecting the vaccine was not her religious beliefs. However, had Ms Allette raised this at the outset of the process (in a way which would perhaps have been regarded as more credible), the outcome might have been very different.

Had it been accepted that it was against Ms Allette’s religious beliefs to get vaccinated and that this was her main reason for refusing the vaccine, the employer may have faced an indirect discrimination claim. In these circumstances, the employer would have required to demonstrate that its vaccination requirement was a “proportionate means of achieving a legitimate aim”.

Employers may wish to consider building in exemptions to any vaccination policy, such that those who are unable or unwilling to get the vaccine, perhaps on medical or religious grounds, are not penalised. However, this is not a straightforward issue. Policing whether an employee has a genuine religious belief which means they feel unable to get vaccinated will be particularly difficult and introducing exemptions may undermine the underlying basis of the policy.

7. Keep any policy under review

As the pandemic has evolved, employers have become adept at dealing with last-minute government policy changes – whether that be in relation to the now discontinued Coronavirus Job Retention Scheme or self-isolation requirements, etc.

In much the same way, any vaccination policy would require to be kept constantly under review as the pandemic continues to evolve. What might be viewed as a reasonable policy today, may not be so tomorrow if circumstances change. One cannot help but ponder over whether the outcome would have been the same in the Allette case had the requirement for employees to be vaccinated been introduced by a different employer today.

By Andrew Knight, Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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