This week has brought exciting advancements in the treatment of COVID-19 as the first Briton received the Pfizer vaccination. As the first 800,000 doses of the vaccine are rolled out in the coming weeks, the UK public is beginning to ask about their rights and whether their employer can force them to be immunised.
Sarah Calderwood is a Human Resources and Employment lawyer at Slater Heelis with over 17 years advising on employment-related issues. Here she discusses the rules when it comes to employers asking staff to get the vaccination.
What responsibilities does my employer have with regards to vaccinations?
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.
Does my employer need to know if I have been vaccinated against COVID-19?
Employers may have to make data protection considerations as the Information Chief Commissioner’s Office (ICO) has confirmed that an employee’s health information is a special category of personal data. In the context of vaccinations, a permitted ground for processing special category data would be for health 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.
If employers want to make the COVID-19 vaccine a contractual requirement, changes in the terms of the contract would need to be agreed by staff. Employers enforcing this change without employees’ express and an 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.
Can my employer add an immunisation clause to my contract?
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 COVID-19 vaccine for any reason.
Can employers cannot force their staff to get the COVID-19 vaccine or discipline those who refuse to do so?
Overall, vaccinating employees without their consent would be criminal assault and probably be a repudiatory breach of contract. Although there is no case law, dismissing an employee because they do not want a COVID-19 vaccine would likely be considered unfair dismissal as it is unusual for an employer to force staff to undergo a medical procedure. Vaccine requirements could also subject employers to discrimination claims as individuals may not be able to get vaccinated on health or religious grounds.
What can an employer do to encourage vaccination?
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, but employers should not force or discipline staff who refuse.
Slater Heelis is a full-service law firm based in the North West with an experienced employment law team ready to advise on any disputes which arise due to the vaccination.
By Sarah Calderwood, Human Resources and Employment Lawyer at Slater Heelis