No doubt many employers (and indeed employees) will be strongly encouraging the workforce to take up vaccinations against coronavirus when eligible at the earliest opportunity. Encouraging employees by making arrangements for vaccinations at workplaces, or strongly encouraging employees to make their own arrangements, will be likely to form a reasonably practicable step to reduce workplace risk in accordance with an employer's general health and safety duties.
The government have been clear that there will be no mandatory aspect to the vaccination programme To seek to so do would be politically undesirable, unlikely to promote confidence in the vaccine and would, in any event, give rise to significant human rights challenges. A national form of "immunisation passports" is still possible, and there have been suggestions that this might form conditions of access to large-scale events (such as concerts and football games).
If the Government doesn't require employees to be vaccinated can an employer do so?
Many employers will ask staff to take up the vaccine as soon as it is available to them and would consider this to be a reasonable management request. Even more so where the work environment is one which brings employees regularly into contact with more vulnerable people and/or poses a higher risk of exposure to the virus (for example in the healthcare sector).
Employers can certainly say that you strongly encourage employees to be vaccinated, and take positive steps to enable this. However, in our view it would likely be risky in most circumstances to subject an employee to an overt/unjustified detriment, or to dismiss them, for not following this reasonable management request. It will be a nuanced problem which calls for a nuanced approach.
Reasons why employees may refuse the vaccine
There are many and varied grounds why some employees might not want, or be able, to be vaccinated. Some will be advised not to on health grounds, such as those who are pregnant or who do not have functioning immune systems). Others may cite religious or philosophical beliefs which they say prevents them from taking up the vaccine. Some may simply be untrusting of the merits or safety of the vaccinations (whether or not you agree those concerns are well-founded).
Some of these reasons will, or may, constitute protected characteristics making any forceful approach to vaccination potentially discriminatory. It may also be a straightforward breach of the implied term of trust and confidence to seek to pressure employees who do not want to be vaccinated to do so, given it is a medical procedure that would otherwise be purely voluntary and where (currently, in many work environments) it would seem likely that there are other measures you can take to sensibly limit the risk arising from a small proportion of employees choosing (or unable) to be vaccinated.
How can I encourage my employees to get the vaccine?
We would recommend that employers adopt a similar model to that of many NHS trusts (which do not generally mandate vaccines). Instead there is a communication campaign that describes there being an expectation employees will be vaccinated as soon as they can and seeks to educate employees (sensibly) as to the benefits of doing so (prevention of risk of harm to them and to others) and where to seek information if they have concerns.
If you have concerns about employees who are not going to be vaccinated, and whether and how you could manage the risk to them and others that arise from this, we would recommend that you take the time to discuss the issue with the employee, run through the benefits and any government safety information, make sure that they understand not having it increases the risk to them and others working with them or coming into contact with them and seek to gain an understanding as to why they are not able or willing to be vaccinated. You can then go away and consider the health and safety implications as they apply to your workplace and that particular individual's role, including importantly whether there are other ways that you can effectively manage the risk of transmission, and seek advice.
Data protection risks of tracking employee vaccine status
Employers need to be careful to recognise that, when speaking to employees about whether or not they are vaccinated (and why not), you will be collecting sensitive personal data and need to be cautious about what you record and how you store such data.
Employers also need to factor practical timescales into planning. There is no point urging everyone to get vaccinated immediately when this simply is not available given the priority roll out. You are more likely to be facing a mixed working environment in the medium term when some employees will have been vaccinated and some will not have been. This means distancing and other PPE measures are likely to be required for the medium term and perhaps even longer term than that (depending on the ongoing data for effectiveness and longevity of the immune response in those who have been vaccinated). The ongoing need for such measures in reality is likely to factor into how reasonable it feels to be insisting an employee be vaccinated (or else faces some detriment or dismissal).
