Michelle Corrigan, Senior Associate in the Employment team at international law firm DAC Beachcroft, addresses some frequently asked questions regarding the COVID vaccination.
The continuing uncertainty about the evolution of COVID has led many employers to look more closely at the vaccination status of employees. A vaccination does not prevent a Covid infection. There is evidence that it reduces transmission but this is not enough to justify vaccination as a mandatory requirement of employment.
When is being vaccinated a legal requirement?
Government Regulations make it compulsory for employees entering CQC regulated care homes to be fully vaccinated or to prove they are medically exempt. Proof of an exemption is provided with a Covid Pass via the NHS app. It may be fair to dismiss unvaccinated employees if they cannot undertake their role in the care home. If employees have more than 2 years’ service or the reason for the lack of vaccination is connected to a protected characteristic (e.g. a disability or medical condition which prevents vaccines) employers must show that they have taken proper account of these reasons in each individual case; and that they have undertaken a fair process before dismissal by consulting and looking for alternative roles including considering measures such as redeploying employees or altering their roles. https://www.gov.uk/government/publications/vaccination-of-people-working-or-deployed-in-care-homes-operational-guidance
Non health sector workforces
Can an employer dismiss existing employees if they do not have a vaccination?
Although it is currently still untested, we consider that it would be a high risk approach in most situations for an employer to dismiss existing unvaccinated employees with more than 2 years’ service, or where the reason for being unvaccinated is discrimination because it is connected to a protected characteristic (age, race, medical condition or religious belief). The employer would need to show that the requirement to be vaccinated is essential for health and safety reasons, and that there are no viable alternative approaches such as working from home, social distancing or regular testing.
Can an employer make vaccination a condition of employer for new starters?
It would be less risky to make it a requirement for new starters to be vaccinated as there would be no risk of a claim of unfair dismissal however, there is still the right not to be discriminated against when applying for a role. Employers should therefore consider making exceptions for employees with medical or belief reasons for not being vaccinated. Needle phobia is unlikely to amount to a belief that is protected. The NHS Covid Pass will demonstrate an exception on health grounds, but not religion and belief, so this should be considered separately. Each decision should be documented and supported by a risk assessment for the role.
Can employers keep records of vaccination status?
Information about vaccination status is considered “special category” data and must be processed in compliance with the Data Protection Act. The Information Commissioners Office has issued guidance that must be followed (see https://ico.org.uk/global/data-protection-and-coronavirus-information-hub/coronavirus-recovery-data-protection-advice-for-organisations/vaccination-and-covid-pass-checks/). Employers should carry out a data protection impact assessment and consider why the data is needed and whether there is a sufficient legal basis for collecting it. The safest legal reasons will be compliance with legal obligations e.g. for care home employees. If employers are only undertaking a visual check of a Covid Pass and are not retaining the data, this would not constitute processing the data.
This article was first published in Business Insider North West, February 2022 edition.
