This FAQ has been prepared to assist employers in the health and social care sectors to manage the workforce issues relating to the COVID-19 vaccine. It is prepared on the basis of legislation and Government guidance as at 8 January 2021. This FAQ does not constitute tailored legal advice and we recommend that legal advice is obtained on a case-by-case basis.
1. Can an employer in the health / social care sector require staff to be vaccinated against COVID-19?
There is no express statutory legal right for employers to require staff to be vaccinated and there is unlikely in many cases to be a clause in the employment contract requiring staff to undergo vaccination. The key question is whether it would be a reasonable management instruction for the employer to require its workforce to be vaccinated?
The answer will depend upon a range of factors. In the context of frontline health and social care staff, there are likely to be cogent health and safety arguments for requesting staff to be vaccinated against COVID-19. Employers and employees have obligations under Health and Safety at Work legislation which should be taken into account.
As frontline health and social care workers have been prioritised for vaccination, if employers are considering making this a mandatory requirement, before adopting this position, there should be appropriate communication regarding any expectation, suitable policies in place, alongside consultation and wider communication with staff, risk assessments and consideration of alternatives.
Any requirement by an employer that only vaccinated employees continue to attend the workplace might fall foul of the implied term of mutual trust and confidence, by reason that it would in effect be compelling employees to have a vaccination for which there is no express legal right. This is new territory and a question which has divided employment lawyers. Employers are therefore advised to tread carefully when considering their policies and take legal advice before taking any decisive action.
2. What steps should an employer in the health / social care sector take before requiring staff to be vaccinated?
Below are some of the of the steps that employers should consider taking prior to requiring staff to be vaccinated:
Carry out a risk assessment
- Employers will need a clear risk assessment to consider the workplace risks of having unvaccinated staff continuing to work with existing infection-control measures in place.
- This needs to be a careful consideration as one decision will not necessarily fit for all staff in the workplace. Employers may need to under individual risk assessments to take account of employees’ individual circumstances.
- Specific legal advice should be taken in respect of staff who may have an underlying health condition or for compliance with duties under the Equality Act 2010.
Consult, communicate, engage
- Explain the proposal for staff to be vaccinated, the current Government guidance and the rationale for the vaccination of all staff. This not only gives staff the opportunity to raise any concerns or queries and for the employer to respond to those, but also provides an audit trail that the employer has sought to provide staff with clear, easy to understand and up-to-date information should there be any dispute later down the line.
- Employers should speak to individuals who object to being vaccinated so that the reasons for their refusal or reluctance are clear and documented. Take care that discussions are not interpreted as bullying and are really a fact-finding exercise to understand the individual’s position.
If an employer decides that it is appropriate to require staff to be vaccinated, taking into account an appropriate risk assessment, relevant factors and any special circumstances, the employer may decide that it is reasonable and necessary to record this in a written policy.
Any policy will need to be carefully drafted to take into account a range of considerations such as applicable equalities issues and GDPR obligations.
The key issue for employers will be whether the requirement for mandatory vaccination is reasonable. Consultation and engaging with trade union or employee representatives prior to introducing any such policy is recommended as a matter of good practice and fairness.
A policy that requires mandatory vaccination cannot be contractual without the agreement of staff (as changes to employment contracts cannot be made unilaterally). A fundamental change to a policy may breach the implied term of mutual trust and confidence, which could entitle employees to resign and claim constructive unfair dismissal.
If you need assistance with drafting or implementing a vaccination policy, please get in touch with a member of our employment team.
Consider alternatives / redeployment
- If after speaking with an individual employee, they are still not willing to agree to have the vaccine then the next step should be to consider whether they can be redeployed, for example into a non-patient or service-user facing role, or given alternative duties.
- If those are not viable options owing to staffing levels or operational needs, then the next consideration would be to send the individual home. Such a step should only be taken after careful consideration and clear communication in line with policies.
Send staff home and refuse pay
- Whether this is a reasonable action will depend on the particular facts. However, in the context of a frontline health or social care worker, where the steps above have been carried out, it is likely that it will be reasonable to send the employee home.
- When deciding whether to pay the employee when at home, employers could seek to argue that the employee is not “ready, willing and able” to work by reason they have refused to have the vaccine and therefore they are not entitled to be paid. However, this is not without risk and the particular reason for the individual’s refusal should be taken into account.
- There is a risk that staff who are sent home without pay may seek to bring a claim for unlawful deduction of wages and/or resign and claim constructive unfair dismissal.
Disciplinary action and / or dismissal
- This should be a last resort measure and avoided where possible. Be very cautious and take legal advice before proceeding to disciplinary action or dismissal.
Take legal advice on individual cases
- This is a highly sensitive and contentious issue which should be considered on a case-by-case basis. Accordingly, employers are strongly advised to take legal advice on individual cases.
5. How should employers deal with staff who refuse to have the vaccine on the basis that they have a protected characteristic under the Equality Act 2010?
Some staff may have valid reasons for not wanting to have the COVID-19 vaccine, which could relate to a protected characteristic under the Equality Act 2010, such as a disability or a religious or philosophical belief.
A blanket requirement for all staff to be vaccinated may constitute a provision, criteria or practice (“PCP”) for the purposes of a claim for indirect discrimination. Such a PCP may be justified if it were a proportionate means of achieving a legitimate aim. The safety of staff, patients or service users, and the duty of employers to comply with their health and safety obligations, may well constitute a legitimate aim. However, it may be difficult to demonstrate that there were no less discriminatory means of achieving this aim.
Employers also have a duty to make reasonable adjustments for disabled staff. Therefore, employers should consider what reasonable adjustments can be put in place to remove any disadvantage caused to disabled staff by the application of a proposal to require all staff to be vaccinated.
An employer can put a clause into employment contracts for any new starter that they must be vaccinated. It is then the decision of the new starter as to whether they choose to accept the terms of the contract. If compulsory vaccination has been incorporated into an employee’s terms and conditions of employment and the employee subsequently refuses to be vaccinated, then this will amount to a breach of contract which could warrant disciplinary action.
The position is not the same for existing employees. A contract may only be amended in accordance with its terms or with the agreement of all parties. If an employer seeks to introduce a clause to make vaccination compulsory, they must ensure that they obtain the agreement from the employee first. If an employee refuses to agree to the introduction of this clause, an employer may dismiss them and offer re-engagement of employment on the new terms. However, this option is not recommended without seeking individual legal advice.
This is partly a commercial decision. From a practical perspective, employers are likely to have a better chance of staff agreeing to have the vaccine if staff are allowed time off in order to do so and are paid for this time.
From a legal perspective, employees are entitled to be paid for carrying out their duties under their employment contract. If an employer is requiring staff to have the vaccine because they consider it necessary in order for the staff to perform their roles, then obtaining the vaccine may be considered part of their duties in carrying out their work. Therefore, such employees may have a contractual right to be allowed time off to get the vaccination or be paid for their time.
We advise all NHS employers to read the letter dated 7 January, 2021 by NHS England giving further operational guidance on COVID-19 vaccinations for frontline health and social care staff.
If you have any questions about this guidance or require legal advice on a specific scenario, please contact Jodie Sinclair (Partner).