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 4 February 2021. This FAQ does not constitute tailored legal advice and we recommend that legal advice is obtained on a case-by-case basis.
Employers may find that a small minority of their staff refuse to have the Covid-19 vaccine on the basis that they believe it is part of a dangerous conspiracy (for example, that the Covid-19 vaccine will plant microchips in people). Some employers are concerned that requiring these staff to have the vaccine may give rise to discrimination claims on the basis that their anti-vaxx views amount to a protected “belief” under the EqA 2010.
For a “belief” to be protected under the EqA 2010 it must:
- Be genuinely held;
- Be a belief, not an opinion or viewpoint based on the present state of information available;
- Be a belief as to a weighty and substantial aspect of human life and behaviour;
- Attain a certain level of cogency, seriousness, cohesion and importance;
- Be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others.
Case law suggests it is unlikely that anti-vaxx views that are based on conspiracy theories would reach the required standard of cogency, seriousness and cohesion in order to amount to a protected belief. It is also unlikely that an Employment Tribunal in the current climate would find that a conspiracy theory about the Covid-19 vaccine, which has met safety standards and been approved for use in the UK, would be worthy of respect in a democratic society.
The position is less clear in relation to other forms of anti-vaccination views, for example a belief that vaccines should not be used until they have been subjected to proper trials over a long-period to ensure their safety. Historically, there are examples of serious adverse consequences when vaccines have been rolled out too early, and this evidence may be sufficient to establish the “cogency, seriousness, cohesion and importance” of the anti-vaccination views. However, establishing that this is a belief (as opposed to a mere opinion or viewpoint based on evidence) is likely to be difficult.
It is highly likely that this debate will reach the Employment Tribunal at some stage and the issue will be clarified. In the meantime, employers should continue to have open, sensitive discussions with any employee who does not want to have the vaccine to ascertain their reasons and try to alleviate any concerns.
2. Can employers require staff who refuse to have the Covid vaccine to sign a ‘disclaimer’ that they accept the risk of contracting Covid-19 and that they cannot bring a personal injury claim against the employer in the future?
It is not possible to ‘contract out’ of future personal injury claims from staff as this would be a contravention of the Unfair Contract Terms Act 1977. Therefore requiring staff to sign a ‘disclaimer’ will not prevent an employee from bringing a personal injury claim against an employer in the future.
There is also the risk that staff may find being asked to sign a disclaimer insensitive and/or, for those staff whose reasons for refusing to have the vaccine are based on protected characteristics under the EqA 2010, that they are being discriminated against.
It is good practice to keep a record of which staff have or have not received the vaccine and the reasons for this. This will serve as an audit trail that the employer has given appropriate consideration to its legal duties to take reasonable care for the safety of employees, and to ensure, so far as is reasonably practicable, the health, safety and welfare of staff and patients/service users.
Given that a disclaimer is not likely to have much legal effect, it would be just as effective for managers to have sensitive conversations with staff who refuse the vaccine, to confirm that they have been offered the vaccine, provided with sufficient information about the rationale for requiring vaccination, the risks and benefits of the vaccine, and the reason for the employee’s continued refusal. Keep an attendance note of the meeting for audit trail purposes.
If an employer wishes staff to sign some form of ‘declaration’ document, this will need to be carefully worded. Please get in touch with a member of our employment team if you would like us to provide appropriate draft wording.
3. Can employers require staff who state that they cannot have the Covid-19 vaccine for medical reasons to provide proof?
It is reasonable to ask staff who state that they cannot have the vaccine to provide medical evidence confirming this. Such evidence is useful for audit trail purposes to show the employer has sought to protect the health and safety of staff and patients/service users by ensuring that those who state they cannot have the vaccine on medical grounds provide satisfactory proof.
The medical evidence could be obtained from their GP/other medical practitioner, or through an occupational health referral.
Any staff who refuse to provide medical evidence should be spoken to sensitively to ascertain their reasons and try to alleviate any concerns. If any staff continue to refuse to provide evidence, this could amount to a failure to follow a reasonable management instruction, which may warrant disciplinary action.
Please note that an employee does not need to have a medical reason to refuse the vaccine and there are other legitimate reasons why an employee may refuse to be vaccinated. If an employer believes that an employee’s reasons for refusing the vaccine are unreasonable, we recommend exercising caution and seeking legal advice on individual cases before taking disciplinary action.
4. Can employers require new starters to provide proof of Covid-19 vaccination before they commence work?
Employers can require new starters to provide proof that they have had the Covid-19 vaccine before they commence work. However, there is currently no ‘vaccine passport’ available, nor are there any concrete plans by the government to introduce one. At present the only method of proof offered to those who have had the vaccine is the ‘vaccine card’. This does not contain secure personal information, making it unreliable evidence that someone has been vaccinated.
Employers may wish to factor this issue into the drafting of employment contracts for new starters, to ensure that the wording is sufficiently widely drafted to allow the employer discretion as to whether it is satisfied that adequate proof has been provided.
Given that the Covid-19 vaccine is not currently widely available, it may be the case that the vaccination of new starters is organised via the employer, in which case it should be easier for the employer to satisfy themselves that vaccination has taken place.
It should be noted that requiring employees to provide medical evidence of vaccination gives rise to data protection issues. If you would like advice on your organisation’s GDPR obligations, please get in touch with a member of our information law team.
5. Can employers in the adult social care sector tell staff who do not want the vaccine that if they contract Covid-19, they will only be paid SSP instead of using the ICF to top up pay to full wages?
Employers in the adult social care sector can use the Infection Control Fund (“ICF”) to ensure that “staff who are isolating in line with government guidance receive their normal wages and do not lose income whilst doing so” (ICF guidance updated 3 February 2021).
However, there is nothing in the ICF guidance which says that employers must use the fund to top up sick pay. There is also nothing in the guidance which states that employers should not or are not expected to top up sick pay in circumstances where an employee has refused to have the vaccine.
In theory employers could tell employees that if they refuse the vaccine without a legitimate reason and then contract Covid-19, their sick pay will not be topped up. However, employers should be mindful of the following risks:
- Where employees refusal of the vaccine is based on a protected characteristic under the EqA 2010, any decision to only pay SSP may give rise to allegations of discrimination.
- Not topping up sick pay may encourage individuals who do have Covid-19 to come into work before they should and present a health risk to the workplace. Social care employers should bear in mind the Statement jointly issued by the DH&SC, PHE and the CQC on 26 January 2021.
- Refusing to use the ICF grant to top up pay may amount to undue pressure on an employee to have the vaccine, particularly if their personal circumstances mean that they would struggle financially without full pay.
Employers should think carefully before implementing this policy. A better course of action would be to engage with employees in open communication surrounding the vaccine and help them to make informed decisions by sharing impartial, factual information. The ICF sets out the principle that staff who are isolating in line with government guidance should not lose their normal income while doing so and this overarching principle should be taken into account.
6. Can employers in the adult social care sector refuse to use the ICF to top up sick pay after the end of the initial 10-day self-isolation period, if the employee provides a sick note from their GP that they are still unwell from Covid-19?
As stated above, employers in the adult social care sector can use the ICF to ensure that “staff who are isolating in line with government guidance receive their normal wages and do not lose income whilst doing so.”
PHE guidance (updated 28 January 2021) states that a person who has self-isolated for 10 days but who still has a high temperature or is otherwise unwell (other than a cold or loss of taste/smell) is advised to continue to self-isolate. Therefore the ICF could still be used to top up pay to normal wages whilst an employee continues to self-isolate beyond the initial 10-day period following a positive test.
Although the ICF guidance is not mandatory or legally binding, there is a strong suggestion that it should be used to maintain full pay for those staff who are unwell with Covid-19 and this will be a relevant factor in relation to the reasonableness of any decision by an employer to not maintain full pay for those employees who are self-isolating.
Whilst employers could opt to not top-up pay of staff who self-isolate beyond the initial 10-day isolation period, this would not be without litigation risk and would require careful communication with staff and consideration of individual employee’s circumstances on a case-by-case basis to ensure that the decision is fair and reasonable.
If you have any questions about this guidance or require legal advice on a specific scenario, please contact Jodie Sinclair.