The Covid-19 vaccination programme is well and truly underway across the UK. And as employers and employees alike look forward to getting back to the workplace when it is safe to do so, the question around the legalities of insisting that staff have a vaccine before they do so has risen up the agenda. So, what are the options and what will HR teams need to manage?
Making vaccination requests
According to global law firm – and APSCo Trusted Partner – Squire Patton Boggs, employers can potentially dismiss an individual on the grounds of refusal to be vaccinated, but each case would need to be considered on the particular facts. If this route is taken, employers will need to demonstrate reasonable grounds for this decision, which includes a clear consideration around whether or not an employee’s reasons for refusal are substantial and whether or not their actions pose a serious health risk to others in the workplace. If the individual’s role requires them to work with the clinically vulnerable, for example, then an employer potentially has more grounds to insist on a vaccine, though this will not be relevant for every company. Employers also need to be aware of the risk of certain employees bringing a discrimination claim if they are dismissed for refusing to be vaccinated.
If your business is considering dismissal for refusal to get a vaccination, it’s important to make an assessment on a case-by-case basis, with the arguments of the employee and potential alternative arrangements taken into clear consideration by the employer.
For a company that is looking to bring teams back into the office under the proviso that staff are vaccinated, it is possible to refuse staff entry to the workplace, however it is important that employers consider similar factors to those outlined above when considering this issue, including whether alternatives are possible such as remote working or further social distancing requirements, for example.
Where third party representatives are planning to be on-site it is also viable to refuse entry to anyone who hasn’t had the vaccination, however this should certainly be handled delicately in light of the issues above.
It’s also important to consider how this will impact the company’s recruitment process. If a candidate is being asked to attend an in-person interview, but hasn’t had the vaccine, alternatives should be offered. The longer-term impact as to how the individual will deliver work if they do not intend to have the vaccine should be considered.
Privacy and data protection
Data protection is also understandably a concern when it comes to recording who has had the vaccine across business locations. According to Squire Patton Boggs, this information constitutes special category data, meaning that it is subject to all the appropriate protections against loss and unnecessary disclosure.
It also means that who has access to this information will need to comply with company data policies. As it is special category data, it should not be widely available and employers considering recording this information should be completely transparent about how this information will be used. A data protection impact assessment is advisable to determine if a record of the information is necessary and if the way in which it is intended to be used is compliant with the law. It’s important to add, though, that there is no ‘one-size-fits-all’ approach to this and employers should take a tailored stance – guided by expert advice – that is suitable for their business.
Although plans to return to the office are being worked on now, if there’s one thing we’ve learnt over the course of the pandemic so far, it’s how quickly circumstances can change. We anticipate that as the restrictions start to ease, the government will update its Workplace Guidelines that were first issued last year. As such, employers should keep their processes under review as they may need adapting over the course of this year and potentially beyond. Employers should ensure any procedures are carefully considered – in line with expert guidance – and reviewed on an on-going basis to remain relevant and compliant in a post-Covid world.