What are the impacts on employment with vaccinations?

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There is a range of anxieties associated with the COVID-19 pandemic, from travelling to green list countries like Portugal and the consequences of last minute changes to travel restrictions through to the impact on employment requirements to get vaccinated. This article looks at the impacts on employment concerning the coronavirus vaccine in the UK. 

Mandatory Vaccination 

At the moment, there is no legal requirement to make any of the COVID-19 vaccines mandatory for anyone in the UK. There has been a consultation ongoing since April 2021 by the Government looking at making the vaccination mandatory for those working in the older adult care sector. 

There has also been indications from the UK Government that vaccinations may be required by virtue of the implementation of a requirement for a COVID-19 vaccination digital certificate. This would imply that roles such as a surgeon would be required to be vaccinated to do their work. 

The UK Government would need to establish new laws in order to make vaccinations to gain or retain employment mandatory, however, there may only need to be new regulations for adult social carers to amend existing regulations (Health and Social Care Act 2028 (Regulated Activities) Regulations 2014 (SI 2014/2936)). 

There are also powers under s45C of the Public Health (Control of Disease) Act (the “Act”) 1984 that allow regulations to be introduced to “prevent, protection against, control or provide a public health response to the incidence or spread of infection or contamination in England and Wales”. This is likely the powers that would be used to impose vaccination certificate requirements on largest public or entertainment events, such as the forthcoming events at Wembley Stadium. This is because under s45B the restriction of travel can be implemented against the unvaccinated. 

However, interestingly, there is already a provision to prevent such regulations from requiring a person to undergo mandatory medical treatment; including vaccinations, under s45E and Schedule 19 of the same Act.

Health & Safety 

From an employer perspective, employers have a health and safety duty to their employees, as well as those that come into contact with their employees, such as customers and suppliers. In areas of enhanced risk, such as health and social care, there could be a potential justification that a mandatory vaccination against COVID-19 be a requirement. 

An employer would have to complete a detailed assessment of the risks to evidence the justification of the vaccination requirement and consult with workplace representatives (and/or trade union representatives). The assessment of risk would be an ongoing document and it may be that an earlier justification is no longer sufficient at a later date following greater success with inoculations. 

Proposals for waiver for those employees that refuse to take a vaccine would likely be worthless against a personal injury claim due to the restrictions on exclusive, by contract, liability for personal injury. However, such a claim against an employer would be unlikely to succeed. 

Dismissal 

There is concern with respect to the dismissal or constructive dismissal that could take place arising from the implementation of mandatory vaccination requirement or the prevention of an employee from entering the workplace due to being unvaccinated. 

Dismissing an employee for not having taken or received a vaccination could potentially be unfair dismissal, should the employee qualify to make a claim, potentially through the process in which the decision to dismiss was reached or the reason for dismissal. Many workers, contractors and the self-employed will more than likely be exposed to the risk of being dismissed or terminated for not having the vaccination if it were to be imposed as a requirement by their employer/customer as they will not normally be eligible to make an unfair or constructive dismissal claim. 

There is also the consideration for some employers that an employee may not be able to undertake meaningful work without being placed at enhanced or additional risk to contracting COVID-19. As the employer has a health and safety obligation to its employees, there is the possibility of a claim for constructive dismissal should an employer not offer their employees work to undertake (there is an implied term to the relationship between employer and employees to offer work during the course of employment). 

However, the main risk for employers will be the disciplinary process or dealing with employee grievances. A claim could be made against an employer by an employee should these processes or procedure be defective and unfair.

Discrimination & Human Rights 

There is consideration that employment offers may be conditional on production of a certificate of vaccination. There is no legal requirement nor prevention to stop employers from doing this. However, there is significant risk that the employer could expose themselves to a claim for discrimination under the Equality Act 2010. This is because current vaccinations are being offered to different age groups and it will likely put certain age groups at a material disadvantage, as well as those that are pregnant or suffer from a disability. 

Data Protection 

There are also data protection considerations with respect to employment, for instance, if an employer seeks to add vaccination status and medical conditions as part of their risk assessment, this data will be medical and fall within the special category data under the UK GDPR. 

Special category data requires employers to identify a lawful basis under Article 6(1) of the UK GDPR, as well as a condition for the processing of that special category data under Article 9. Failure to have identified both requirements to processing would be a breach of the UK GDPR and, most likely, reportable to the regulator (the Information Commissioner’s Office). 

Insurance 

Employers’ liability insurance is a legal requirement in the England and Wales, however, for employers it will be more important as part of a risk mitigation strategy to ensure that their insurance is maintained and the statement of fact within their policies fully up-to-date with any changes to their business details to prevent insurers from disclaiming liability for claims should an employment dispute or claim be made against the employer.

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