As the Covid-19 vaccine gets rolled out to more vulnerable groups across the country, employers may be starting to think about reintroducing their staff to the workplace after almost a year of furlough, homeworking or getting by under tough conditions.

One of the questions that’s sprung up is whether they can make it mandatory to get the Covid jab.

The short answer is that no, you can’t force staff to get immunised in most cases.

Strongly recommending that your staff have the vaccine is reasonable enough but be aware that some of your employees may not want to get it for health reasons, religious reasons or because they’re pregnant. Others have trust issues with large pharmaceutical companies or are hesitant due to the rapid development of the vaccine.

Terminating their employment would be viewed as discriminatory and they could take you to court for unfair dismissal.

Sarah Calderwood, a human resources and employment lawyer at Slater Heelis, said: “Under current health and safety legislation, employers have a duty to protect the health of employees, anyone on their premises and anyone else affected by the business.

“Existing vaccination guidelines state that if a risk assessment finds a risk of exposure to biological agents and effective vaccines exist, employers should offer to provide immunisations to those who are not already immunised, however, employees are at liberty to refuse immunisation.”

> See also: How to do a coronavirus risk assessment on your small business premises

The major caveat in all of this is what type of business you run. If your business is in a certain sector – say, you operate a care home – there could be more of a basis for requiring staff to get the jab.

Reports show that, at the time of writing, up to one-fifth of care home workers have refused the inoculation. The National Care Association have sought advice as to whether they can force staff to have the jab.

What’s more, Charlie Mullins of Pimlico (formerly Pimlico Plumbers) recently announced that the company would be introducing a ‘no jab, no job’ policy. He said that once the jab is out there and becomes private, he would pay for all of his staff to have it, having already set aside £800,000 to immunise staff. Defending the policy, he says that if they go to a country that requires a jab, the company provides it. As for new starters, he’ll only be taking on employees who have been vaccinated against Covid-19. Lawyers are helping Pimlico to implement this policy.

> See also: Charlie Mullins: ‘I don’t like banks – they’re crooks in suits’

Vaccine Deployment Minister, Nadhim Zahawi, disagrees with the move. “I think that is discriminatory. We’re not that sort of country and I think it’s important we do it by persuasion,” he told Radio 4’s Today programme.

Nick Hurley, partner at Charles Russell Speechlys said:“’No jab, no job’ may seem clear and concise, but whether an employer can make it mandatory for employees to have the Covid-19 vaccine is far from straightforward. There are many other factors to consider.”

To try and clear up some of the confusion, we’ve asked various legal professionals for input to find out more about these factors and how they affect you and your employees.

Is anti-vaccination / anti-vax deemed a philosophical belief?

In recent years, we have seen a rise in people choosing to opt out of vaccines – it’s also known as the anti-vax movement. Some employers will wonder if anti-vax counts as a philosophical belief under the Equality Act.

First of all, let’s establish what a philosophical belief is. An employee would have to show:

• It is a belief and not an opinion or viewpoint based on the present state of information
• The belief is genuinely held
• The belief concerns a ‘weighty’ and substantial aspect of human life and behaviour
• It is ‘worthy of respect in a democratic society’
• It is held with ‘sufficient cogency, seriousness, cohesion and importance’

Charlotte Farrell, associate solicitor at Paris Smith, said:

“There is a risk that individuals could try and argue that being an ‘anti-vaxxer’, i.e. not agreeing with vaccinations, should qualify as a philosophical belief under the Equality Act 2010 but this hasn’t been tested in the courts and would be a difficult argument to prove.”

Recent case law has confirmed that to be a philosophical belief there needed to be coherent belief system behind it. This was tested in the case of vegetarianism. The fact that people became vegetarians for many different reasons was fatal to it being seen as a philosophical belief. However, veganism has been found to be a philosophical belief.

As the anti-vax movement has many different motivating factors it is likely a similar approach to vegetarianism would be taken, although there is no guarantee. There is also a lot of misinformation available about the vaccine which could affect any arguments that the belief is held with ‘sufficient cogency and seriousness’ on this topic.

“Employment tribunals are also likely to take into account the public policy reasons for not having a vaccination and the impact this has on the health and wellbeing of others,” said Farrell. “Those who hold the belief on religious grounds, however, may have a stronger argument and every case needs to be looked at on its specific facts.”

Do my employees need to tell me that they’re getting the vaccine?

No, they don’t. That information is regarded by the Information Commissioner’s Office (ICO) as data which has special protections, so your employees don’t have to notify you that they’re getting the vaccine. The only exceptions are if you have a clause in your employee contracts that states they must tell you as such or there is a health purpose for requiring this information.

Sarah Calderwood said: “In the context of vaccinations, a permitted ground for processing special category data would be for heath purposes. However, employers must ensure they are handling their employee’s data with care and the ICO advises that employers only need to obtain confirmation whether the employee has had the vaccine and collecting any more data is unnecessary and excessive.”

Can I alter contracts so that my staff have to get the jab or add an immunisation clause?

This is not so easy. You would need to get approval from staff in order to make the change – this’ll be challenging if there are employees who either don’t want the vaccine or see it as unethical to make it mandatory. The latter is important to bear in mind for your reputation. A clause like this could put candidates off applying to your business in future.

Sarah Calderwood said: “Employers enforcing this change without employees’ express and implied agreement would be in breach of contract and employees would be entitled to resign and claim constructive unfair dismissal. Employers could find it difficult to show this change in terms as reasonable and may struggle to introduce this type of agreement for existing employees.

“If employers were to introduce an immunisation clause into new starters’ contracts, it would have to be in a reasonable manner which would include consultations with any employees worried about the vaccine for any reason.”

Since this article was first published, justice secretary Robert Buckland has suggested that employers could have the right to introduce a ‘no jab, no job’-style policy for new starters. However, he added that it’d be illegal under existing contracts.

What about interviewing candidates? Can I ask them whether they’ve had the vaccine?

You can’t ask potential employees whether they’ve had the vaccine unless there’s a compelling health and safety reason to ask why.

Again, it’s seen as sensitive data so in most instances it would be deemed inappropriate to ask in interview.

Laura Kearsley, partner and solicitor specialising in employment law at Nelsons, said: “There is a general prohibition on employers asking prospective employees health-related questions, which in this case would include their vaccination records. Although, there are limited exceptions to this that could apply to sectors and job roles where there is a particular health and safety reason, meaning the employer needs to know whether you’ve been vaccinated or not.”

How can I encourage staff to get the Covid-19 jab?

As much as you can’t force staff to have the injection, you can certainly encourage them. This could be through providing reliable information or supporting your staff in getting the vaccine in other ways.

Laura Kearsley said: “We’d advise our clients to encourage their employees to get vaccinated by ensuring staff have access to reliable information about the vaccine, so they’re able to make an informed choice – and even to allow paid time off for vaccination appointments.”

Sarah Calderwood added: “Employers who are keen for their staff to be immunised should write a non-contractual policy outlining the benefits of getting the vaccine and any arrangements for staff to be immunised. Any employees who refuse the vaccine could be met privately to explain the benefits again.”

How do I start reintroducing staff back into work?

Much of what you do in terms of reintroducing your staff to the workplace rests on your Covid-19 risk assessment, which we mentioned at the beginning.

Charlotte Farrell, associate solicitor at Paris Smith, said:

“It will also require conversations with specific individuals about their concerns and own risk factors. It may be possible to make decisions based on those who have received the vaccination and those that have not, but employers need to be wary of any indirect discrimination arguments which could arise as a result.

“For instance, younger staff will be vaccinated last and therefore could argue a decision to only let staff back once vaccinated is indirectly discriminatory on the grounds of age. Such decisions can be justified if there is a good business reason which was necessary and proportionate.”

She goes on to say that, at the moment, it isn’t clear whether or not the vaccine will prevent transmission or just prevent someone becoming seriously ill. Employers have a duty to protect the health and safety of those at work and therefore this needs to be the main focus. If clearer evidence emerges that the vaccines prevent transmission, then it is perhaps more likely an employer could justify a decision to take vaccinations into account when staff return to work. If, however, it only prevents the person who has the vaccine becoming seriously ill such arguments may be less valid.

Employers can also look to introduce rapid Covid testing while the vaccine is being rolled out. Just be aware that their accuracy has been patchy so if an employee tests positive, ask them to take a traditional test and if that too is positive, they’ll need to self-isolate as per the government guidelines.

Read this guidance for employers on introducing Covid-19 testing.

Where can I go for further advice on the Covid-19 vaccine?

If you want more guidance tailored to your business’ needs, the best thing to do is contact a trusted legal firm with your concerns.      

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