7th Jul 2021

Coronavirus Vaccinations - what employers need to know

As the UK continues to roll out its COVID-19 vaccination program to all adults, employers are currently facing many difficult decisions around their staff, in terms of what they can and can’t do when it comes to the vaccines. 

These include questions around what information can be collected, what the data protection issues are and whether employers can make the vaccination compulsory for their employees.  

Here, we’ve set out the most common questions we’re being asked and what employers need to know:

Can we ask our staff if they have had the coronavirus (COVID-19) vaccine?

In short, yes. However, your reason for recording your employees’ vaccination status’ must be clear and compelling, and you must ensure you comply with your data protection obligations. Whether your employee has been vaccinated is their private health information, which is “special category data” for the purposes of processing under data protection law. 

If you have no specified use for this information and are recording it on a “just in case” basis, or you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it. 

The sector you work in, the kind of work your staff do and the health and safety risks in your workplace should help you to decide if you have compelling reasons to record whether your staff have had the vaccine. For example, if your employees:

  • Work in a health and social care setting or somewhere they are likely to encounter those infected with COVID-19; or
  • Could pose a risk to clinically vulnerable individuals.

This may form part of your justification for asking and collecting the employees’ vaccination data.

If you do collect this information, you must ensure that it’s kept securely and shared only with specific people who need to access it. Also, it must be kept for no longer than necessary.

Can we make it compulsory for all existing employees to get the COVID-19 vaccination?

There’s currently no law that says people must have the vaccine, even if an employer would prefer someone to have it.

Although, there will be a future consultation on whether vaccination should be made compulsory in the healthcare sector and further social care settings – the government has already committed to making vaccination a condition of deployment for staff working in care homes from October 2021. This will include anyone entering a care home to carry out other work such as tradespeople, hairdressers and volunteers who will also need to be vaccinated.

In the meantime, if you plan to make getting the vaccination compulsory for your existing workforce, then this approach is not risk free.

Employers have a duty, so far as is reasonably practicable, to ensure the health, safety and welfare of those working for them, as well as those who physically interact with the business.

However, having a one size fits all vaccination policy, which results in employees being dismissed or treated less favourably if they have not been vaccinated, could lead to employment claims for unfair dismissal and/or discrimination, for example on the grounds of disability, age, religion or belief.  If side effects later emerge, personal injury claims are also possible.

Where discrimination risks are present, you would need to be able to justify the policy by demonstrating that there is a legitimate aim (for example health and safety) and that mandating the vaccine was a proportionate means of achieving this.  

It’s also important to bear in mind that a compulsory vaccination policy is just one way to try to manage COVID-19 risks in the workplace and should be considered alongside other appropriate measures such as social distancing, hygiene procedures, and working from home.

Can we have a “no jab, no job” policy for all new employees?

Again, this is not without legal risks which would need to be evaluated, but less so than compulsory vaccinations for existing employees because there will be no risk of unfair dismissal claims from potential new employees.

They still, however, have the right not to be discriminated against because of their protected characteristic, for example, their age, disability, religion or belief.  If opting for this type of recruitment policy, then the employer could be flexible and consider making exceptions for those employees with, for example, medical or belief-related reasons for not being vaccinated.  

Can we encourage and support employees to get the vaccination?

Yes. As covered above, all employers are required under health and safety laws to take reasonable steps to reduce any workplace risks. Therefore, encouraging your workforce to get the vaccination when offered, to protect not only themselves, but also everyone they work with, is one way to reduce the risks.

To encourage and support employees to get the vaccination, you might consider:

  • Paid time off for vaccination appointments (see below for further detail);
  • Paying staff their usual rate of pay if they’re off sick with vaccine side effects, instead of statutory sick pay; or
  • Not counting vaccine-related absences in absence records or towards any “trigger system” the business may have.

These steps will help to support your staff to protect their health, keep good working relationships and hopefully avoid disputes arising in the future. 

What about contractors, agency workers and visitors to our premises?

Where contractors and agency workers work alongside your employees, it will be very difficult to show any substantial reason for a difference in treatment.

Contractors and agency workers are also protected under discrimination law, so the same considerations should apply (as above), but they will have no right to claim unfair dismissal, so the legal risks of a compulsory policy are significantly reduced.

With visitors, it may be easier to point to key differences - for example, they may only be allowed to access one part of an office area / premises where none of your employees are based, and strict COVID safety measures are in place.

Do we have to allow employees time off during working hours to get the vaccination?

There is no general right in law for an employee to have time off for medical appointments, but we expect that most employers will allow time off for COVID-19 vaccinations and there are lots of reasons to do so, such as:

  • Employers have a legal obligation to provide a safe place of work and to minimise risks for all employees
  • Your employment contracts and policies may include rights around time off for medical appointments – so check these
  • Employees who are clinically vulnerable may be classed as disabled under the Equality Act 2010 and allowing time off to get the vaccination could be a reasonable adjustment

Can staff be informed that a colleague has tested positive for COVID-19?

It may be appropriate for you to inform your staff if a colleague has tested positive for COVID-19, so that steps can be taken to prevent further transmission.

However, you must remember your data protection obligations in relation to that employee (above, personal health information is “special category data”) and disclose no more information than is necessary. 

You may be able to provide information that allows staff to know they’ve been in recent close contact with the employee who has tested positive, without identifying the individual involved – although this may be hard, especially where you only have a small workforce.

In its guidance, the Information Commissioner’s Office states that employers should keep their staff informed about potential or confirmed cases of COVID-19 among colleagues, but that they should “avoid naming individuals if possible”. 

Please note that the above does not constitute advice from the Berwins Employment Team and is for information only. If you require any specific advice or support on this area or any other COVID-19-related employment issues, please call Mike Patterson on 01423 542778, or email mikepatterson@berwins.co.uk.

Be sociable. Share!

Get Social

Connect with us on LinkedIn

  • L500 60 Px
  • Chambers 60
  • Lexcel Accredited
  • Investors In People Silver 2
  • Conveyancing Quality
  • Ce Badge 60 Px
  • Carers Charter Logo 60 Px