A key development in the UK government’s vaccination roll-out has been the announcement on 17 June to make Covid-19 vaccinations compulsory for care home staff. With some limited exceptions the requirement, which has now been approved by both Houses of Parliament, is due to come into force from October 2021, and stands to affect approximately 1.5 million people who work in social care in England.
Many businesses may be wondering whether there is a legal right to mandate the vaccination of workers, and in the case of those organisations where employees have largely been working from home since March 2020, whether proof of vaccination will need to be evidenced before they are permitted to return to the office or other place of work.
Our legal experts answer key questions for employers on their obligations, along with the rights of employees.
Can my employer force me to have the Covid-19 vaccine?
As things stand, the express requirement to be vaccinated is limited to care home staff.
That said, there could be other sectors where employers identify that staff being vaccinated remains a key measure to reduce risk to the workforce.
Under the Health and Safety at Work Act 1974, employers are required to take reasonable steps to reduce workplace risks. The Act also places obligations on employees to cooperate with their employer so far as is necessary to enable the employee’s duties to be performed.
In addition, failure to follow a reasonable instruction can lead to disciplinary action.
Failure to agree to have the vaccine might, depending on the circumstances, lead to potentially fair grounds for dismissal, whether on the basis of misconduct and/or 'dismissal for some other substantial reason' (SOSR).
From a contractual point of view, and depending on the terms in the contract of employment, employees could be dismissed for refusing to be vaccinated if it means they will, for instance, present a threat to themselves or others such as vulnerable clients, customers or colleagues.
That said, any employer proposing mandatory vaccination should be mindful of potential claims for unfair dismissal if they do dismiss employees without a fair reason and/or without having followed the due process. Employers may also be exposed to claims for failing to take into account of the particular circumstances of their employees, for instance if suffering from a medical condition that means they cannot take the vaccine.
Employers may, in those circumstances, be exposed to claims for disability discrimination or failure to make reasonable adjustments. Of course, each case will depend on its particular facts and businesses should take legal advice on the issues, risks and options available before embarking on any steps.
I’m an independent contractor, what happens if I refuse to have the vaccine?
Contractors and agency workers do not have the same rights as employees in terms of being able to claim for unfair dismissal. However, depending on the circumstances there could be protection under the Equality Act for workers with a protected characteristic if they are found to have suffered discrimination in connection with any mandatory vaccine requirement that might be imposed.
I suffer from a disability that means I can’t have the Covid-19 vaccine
You may have been advised by a medical professional not to have the vaccine due to a medical condition. If this is the case and your employer has asked you to have the vaccine, your employer may wish to understand why you are not able to comply.
Many employers want to encourage their disabled employees to come forward to ensure that they make any necessary reasonable adjustments on account of this, as appropriate.
An employer considering dismissing an employee as a result of a refusal to be vaccinated will need to give careful thought to whether there are any alternatives to dismissal - for example, redeploying the employee to another role where this does not amount to a detriment in the particular circumstances, for example, one that is not customer facing. This is particularly important for employees who may have exceptional circumstances which may prevent them from being vaccinated.
Can a prospective employer ask me if I have had the Covid-19 vaccine?
Employers are not normally permitted to ask job candidates health-related questions before offering them a job, which in this case would include your vaccination records.
There are however, limited exceptions to this that could apply to sectors and job roles where there is a particular health and safety reason, meaning the employer needs to know whether you’ve been vaccinated or not.
Provided the employer did not discriminate against you if you are unable to have the vaccine as a result of a disability or as an expectant mother who is unable or unwilling to have the jab as a result of your pregnancy, then this would be deemed lawful.
Does my employer have the right to hold my Covid-19 vaccination data?
Employers may have good reason to collect and hold Covid vaccination data if it means that they are able to ascertain whether an employee is deemed “safe” to work with.
Under both GDPR and the Data Protection Act, health information is considered “special category” data that is subject to additional safeguards and requirements before being capable of being lawfully processed.
Employers will therefore need to consider whether they are able to lawfully process this information and if so on what basis. Staff should be informed on what is happening with their data and why. There are also specific obligations under employment law and public health, more details of which can be found in guidance from the Information Commissioner’s Office.
On Family law, our experts address the current legal situation regarding the vaccine and children:
Will parents be asked to vaccinate their children against Covid-19?
At present, there is no legal requirement in England and Wales for a child to be vaccinated and there is a degree of uncertainty as to the exact legal position of children regarding Covid-19 vaccination.
In law, if you have ‘parental responsibility’ for a child, you are deemed to have ‘all the rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child and his property.’
My ex-partner and I disagree over vaccinating my child for Covid-19. What would the Courts say?
If both of you with parental responsibility disagree about whether your child(ren) should have the Covid-19 vaccine then the court would interject as the decision maker through the mechanism of a Specific Issue Order made under Section 8, Children Act 1989.
The recent case of M v H and Others (December 2020) provides a useful insight into how the courts may deal with any future applications from parents concerning the administration of the Covid vaccines to their children.
In M v H and Others, the father’s application was to ensure his children were vaccinated according to the NHS vaccination schedule but also, widen the scope of his application to include vaccines for future travel and vaccination against Covid-19.
However, Justice Macdonald confined the issues to be determined to what is currently on the NHS vaccination schedule only.
The Father succeeded in his application against the mother for a Specific Issue Order under Section 8 of Part II of the Children Act 1989 to allow both children to be vaccinated according to the current NHS vaccination schedule, as it was deemed in the children’s best interests to do so.
Justice MacDonald did not give judgment on the Covid-19 vaccine and children per se, however he commented on the court’s position in the event there is a dispute between parents and their children regarding the administration of the Covid-19 vaccine:
“It is very difficult to foresee a situation in which a vaccination against Covid-19 approved for use in children would not be endorsed by the court as being in a child’s best interests” Justice MacDonald
Our legal experts are here to help if you require more in-depth guidance around the legal issues relating to the Covid-19 vaccine. We are just a call away.
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