Michael Burd
Lewis Silkin, London
michael.burd@lewissilkin.com

Helen Coombes
Lewis Silkin, London
helen.coombes@lewissilkin.com

Introduction

The Covid-19 pandemic continues to create workplace challenges as the evolving situation requires constant re-evaluation and justification of an employer’s position. What began as health and safety measures to keep employees safe has now become a wider question regarding the ability of employers to insist on vaccination and testing. In this article, we discuss the legal implications and what this means for the employer-employee relationship.

Vaccinations

In early 2021, the United Kingdom government began its rollout of the vaccination programme. Businesses began to consider the contentious topic of vaccination and what their approach would be, with many waiting until vaccination had been offered to all working age groups to make a policy decision.

As of 11 November 2021, care home workers in England are required to have been fully vaccinated. The government has recently announced that the same will apply to front line health and social care workers from spring 2022. This is a controversial measure, and a judicial review application has already been brought by two care workers who challenge the new law on various grounds including breach of human rights.

It is currently unclear what effect the government decision to mandate vaccination for specific workers will have on other employers. Many employers will be concerned by the negative headlines and the government’s own projections showing that a significant number of health workers will accept dismissal rather than vaccination. It may also weaken the position of other sectors wishing to mandate vaccination, as the government has only legislated for the specific areas it considers necessary – it has not mandated vaccination for other public sector roles despite many of these being customer-facing.

However, some employers may find there is increasing acceptance amongst their workforces of the necessity of vaccination, or even demand that co-workers be vaccinated. To date, research shows that vaccination can reduce the risk of infection and also dramatically reduce the likelihood of hospitalisation and death – although, as immunity wanes over time, increasing numbers are catching and spreading the virus despite being double vaccinated. It also appears that the Omicron variant can infect the double-vaccinated more easily than other variants. A third booster vaccine which greatly increases protection against infection is to be offered to everyone over the age of 18, and it seems likely that the definition of ‘fully vaccinated’ will be changed to require the booster dose as well. The effectiveness of the booster dose in preventing infection (if its effects last) may make it easier for employers to justify a vaccination requirement as part of a health and safety risk assessment.

Unfair dismissal

The issue of mandatory vaccination is untested under UK employment law. The main legal risk arises from employees with more than two years’ service who have the right not to be unfairly dismissed. Employers who want to mandate vaccination for all existing staff will need to consider carefully whether they have a fair reason to dismiss employees who refuse.

Following the government’s approach to the healthcare sector, employers operating in similar settings could, in theory, mandate vaccination for staff as a health and safety requirement. This would require a risk assessment, and the employer would need to show that being vaccinated is the most reasonably practicable way of reducing the risk from Covid-19. A failure to be vaccinated could then be treated as a breach of a health and safety requirement resulting in a potentially fair dismissal.

This will not be straightforward for employers operating in non-healthcare related sectors. Employment Tribunals (ETs) will consider the reasonableness of an employer’s decision to dismiss, and there are several alternatives to mandatory vaccination, such as regular testing or continued use of personal protective equipment. The National Health Service (NHS) Covid Pass allows users to demonstrate their Covid-19 status through full vaccination, evidence of a negative test in the last 48 hours, or evidence of a recent infection in the past 180 days. It is likely to be difficult to show it is reasonable to require vaccination as the only option, when there are recognised alternatives that are used by the government’s own pass scheme, and when many businesses have operated throughout the pandemic with appropriate alternative health and safety measures in place.

Employers also need to show that they have considered options short of dismissal – such as making an exception, allowing the employee to work from home, or moving them to a different role. An ET is likely to expect an employer to have considered allowing an unvaccinated employee to take alternative measures such as regular testing or providing evidence of immunity from a recent infection, and to be able to explain why that was not an appropriate alternative. It is unclear what lengths an ET would expect an employer to go to, but the overall test is what a reasonable employer would be expected to do.

Discrimination

Employers will also need to consider exceptions for those with medical conditions that prevent them from accepting vaccination. Some medical conditions may be capable of meeting the legal test for a disability, meaning dismissal or any unfavourable treatment could amount to disability discrimination.

Some employees may claim that a mandatory vaccination policy would discriminate against their religious or other beliefs. It seems unlikely that a religious objection would be valid, given that most religions do not disagree with vaccination in principle, and none of the current vaccines contain any animal-derived ingredients. However, it is possible that other beliefs may be relevant. For example, ethical vegans may disagree with vaccinations in principle as they will have been tested on animals, and an ET has previously held that ethical veganism can amount to a belief that is protected under discrimination law. It is unlikely, although untested, that a belief against vaccinations in itself would meet the test. A specific anti-vaccination belief would need to form part of a cohesive and serious conviction, rather than simply being a point of view.

The legal claim in these circumstances would be for indirect discrimination, on the basis that the employer’s policy disadvantages those with certain beliefs. An employer can justify this type of discrimination by showing that its policy is a proportionate means of achieving a legitimate aim. Interestingly, the government has decided not to allow a belief-based exemption for care home staff, due to difficulties with implementing such an exemption and the risk that it undermines the policy. As always, an ET may not necessarily agree, so other employers may still need to consider an exemption or alternatives – bearing in mind that the number of cases in which this issue will genuinely arise is likely to be very small.

Some employers have restricted mandatory vaccination policies to new starters, as there is no unfair dismissal risk. However, the risk of a discrimination claim still applies regardless of length of service.

Testing

Compulsory testing is less controversial than mandatory vaccination. It is highly unlikely that any employee would have a winnable discrimination claim arising from a requirement to be tested, so long as all employees are treated consistently. The authors are not aware of any valid belief objections to testing, and there are few, if any, medical conditions which would prevent testing and would be capable of amounting to a disability.

Nevertheless, employers wishing to dismiss employees with over two years’ service for a failure to comply with testing requirements would still need to show that this was reasonable in order to avoid an unfair dismissal claim. Employers may be on stronger ground if they use mandatory testing as a condition of entry to the workplace, rather than using refusal as a ground for a dismissal. Another option is to adopt the same approach as the NHS Covid Pass and require only unvaccinated individuals to undergo testing.

More employers may turn to mandatory testing policies given the legal risks of obligatory vaccination policies, combined with the government’s lifting of legal requirements to wear masks and observe social distancing. As of 16 August 2021, the government also changed the rules to allow the fully vaccinated and those under 18 to avoid self-isolation following close contact with a positive Covid-19 case (although this does not apply if the contact has the Omicron variant). This may mean employers regard mandatory testing as an important part of ensuring workplace safety. Some employees may also find mandatory testing a comfort given the current high prevalence of Covid-19 across the UK, the growth of the Omicron variant, and employers’ desires to accommodate a return to office working.

Data privacy

Employers need to consider data privacy when asking employees to provide evidence of their vaccination status, as this is classed as special category health data. Guidance from the Information Commissioner’s Office (ICO) states that any vaccine data collection must be necessary and relevant for a specific purpose, but concludes there is a lawful basis to process the data if there is a good reason for its collection.

The safest legal basis is compliance with legal obligations and ‘substantial public interest’ – based on preventing the spread of the virus and complying with the duty of care to other employees. Asking employees to share their vaccination status is less risky than insisting that they do so, as the ICO would be more likely to regard the policy as proportionate. A data protection impact assessment should be carried out.

Similar considerations apply in relation to testing. The ICO has provided guidance for employers on carrying out workplace testing which emphasises the need to inform staff in an open and transparent manner about the reasons for processing their personal data, and what decisions will be made as a result.

Changing expectations and the future

The pandemic has been a significant catalyst for change in workplaces globally, from new demands for flexible working to an increased understanding of caring responsibilities and a change in how employees view their employers.

Nothing demonstrates this more than data privacy, which is something no one had anticipated at the beginning of the pandemic. Following the introduction of the General Data Protection Regulation in 2018, there was a huge increase in awareness about data protection rights and what that meant in terms of how personal data is used. The UK was moving towards a society which valued restricted data sharing and keeping personal data private.

The pandemic has caused a considerable move away from that approach in the field of personal health data. Employees have willingly shared very sensitive and personal information about their own and their family’s health, in the hope that their employer would keep them safe during the pandemic. Employees have accepted measures such as temperature checking on arrival, sharing their vaccination status and even sharing their Covid-19 status with their employer in order to keep themselves and their co-workers safe. Employees have had to trust their employer with that sensitive data and, in some cases, go beyond that to reveal some difficult personal circumstances that an employer would never have known about otherwise – particularly due to the blurring of boundaries caused by home working.

The future of work has changed beyond all expectations since 2020. Vaccinations, testing and health and safety will continue to cause tension between employers and employees. With the introduction of the booster programme and the increasing likelihood that annual vaccinations will be needed, these issues are not disappearing any time soon.