Employers can’t force staff to have the vaccine, but they should encourage them to. Where do employers stand and what can they actually do? advohr’s Alison Gill looks at the problem and gives practical advice.

The COVID-19 vaccine rollout is new to us all and many employers may be scratching their heads about their obligations and whether they should be asking or even requiring their employees to take the vaccine if is offered to them. This is unchartered territory….

Alison Gill, HR Manager looking after the advo & Sagegreen HR teams

To think about this, we must consider government guidance, employment legislation, Health and Safety implications and most importantly, how employees may feel.

There is currently no legal basis in the UK to make vaccination for COVID-19 mandatory. In fact, the Public Health (Control of Disease) Act 1984 specifically precludes any government regulations from ‘requiring a person to undergo medical treatment’ which includes vaccinations.

So, as the government hasn’t made the vaccine compulsory neither can employers and employers cannot restrict employees coming to work based whether or not they have had the vaccine.

Furthermore, requiring employees to have the vaccine is unlikely to be a reasonable management instruction and any dismissal for refusal to have the vaccine is unlikely to be fair.

Making it a requirement for employees to have the vaccine, who refuse because of a protected characteristic such as disability, pregnancy or religious/philosophical belief could lead to potential discrimination claims. Even requiring an applicant or new employees to have the vaccine could cause issues as if the applicant did not wish to be vaccinated because of a protected characteristic, refusal to offer a job in those circumstances could result in a discrimination claim.

Employers can ask if employees have or have not had the vaccine if they are asking for good reason, e.g., the safety of others but medical information, including vaccine information, is regarded as special category data so all records must be stored in line with GDPR and the Data Protection Act 2018.

What a lot to think about and a conundrum for employers…

The Health and Safety at Work Act 1974 obliges employers to take reasonable steps to reduce any workplace risks.

This duty gives employers justification for encouraging their employees to be vaccinated to protect themselves and everyone else at the workplace.

COVID-19 is also a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (known as RIDDOR) and this strengthens the stance that employers’ should encourage that employees should agree to vaccination.

You can’t force employees to have the vaccine but we would strongly recommend that employers take positive and pro-active steps in promoting a persuasive case for employees to have the COVID-19 vaccination.

It will be some months before most working age people have received the vaccine and we would encourage employers to start to run a strong, cohesive, clear communication programme right now and plan a continued delivery of awareness information into the coming months.

An awareness campaign will publicise the benefits of the vaccine and provide employees with impartial, factual information, using up to date NHS information and offering and providing employees with consistent, accessible and factual data may help allay any fears.

There will be some employees who will welcome the opportunity to have the vaccine but others will be hesitant or will refuse. The reasons could be wide and varied and range from medical grounds to their religion or belief. It must always be remembered that the decision to have the vaccine is a personal choice and employees cannot be pressured.

It is crucial that any employee’s concerns are acknowledged and listened to and they are afforded the time to voice their worries. Only then can their concerns be addressed by talking to them, and providing factual information.

We would recommend that copies of any communications distributed within any such campaign are retained just in case any pro-vaccine employees complain that the employer has taken inadequate steps to comply with their health and safety duties.

In the meantime, employers must continue to evaluate their ways of working and continue to comply with all government guidance until further information is given.

Remember, you never hear the complaint that my employer over communicates with me.

Employees look to their employers for guidance and we would advise that your publicity campaign and encouragement begins now and continues throughout the pandemic and we don’t yet know how far into the future…..but the momentum should be kept up as continued encouragement and information can only be helpful to your business.

If your organisation needs more support in looking after your people then advo is here to help. email advohr@advogroup.co.uk to start a conversation.

CIPD GUIDANCE

Where working from home is not possible, the CIPD is urging businesses to ensure they can meet three key tests before bringing people back to the workplace. These are:

• Is it essential? Can a person’s role only be done from their place of work, rather than at home?
• Is it sufficiently safe? Employers have a duty of care to identify and manage risks to ensure the workplace is sufficiently safe to return to.
• Is it mutually agreed? There must be a clear dialogue between employers and employees, so individual worries are taken into account and adjustments can be made.

You can read the CIPD’s new guidance, Preparing for the COVID-19 vaccination: guide for employers, here.

You can read the CIPD’s press release in full here.