By Daniel Stander, employment lawyer in the London office of international law firm, Vedder Price (www.vedderprice.com)
With the outdoor hospitality sector set to reopen from 12 April, Daniel Stander, employment lawyer at Vedder Price LLP, breaks down the issue of mandatory employee vaccination.
1) “JAB / JOB”
As over 50% of all UK adults have now received their first dose of the vaccine, the simplest scenario an employer might face is reopening with a work- force that is already fully vaccinated.
In these cases employers will not need to engage with the question of mandatory vaccination. However, employers who wish to confirm and record the vaccination status of their employees should be mindful of the special category data protections that are applicable to health data.A data privacy impact assessment looking at how the business holds and processes such data should be conducted.
2) “NO JAB / NO JOB”
Despite the above statistic, recent YouGov data suggests that up to 21% of people still do not intend on being vaccinated. Concerns around the level of vaccine take-up have led to the Government announcing a pol- icy of mandatory vaccination for workers within the care sector, a move without modern precedent, and only time will tell whether this is the beginnings of a sea change in vaccination law, or whether the peculiarities of the care sector make it a unique case for government intervention.
Given this uncertainty, employers should keep in mind that having a policy requiring vaccination is one thing, but being able to enforce that policy is another entirely.
The relevant question is whether the requirement to be vaccinated amounts to a “reasonable request” that the employer can make of the employee. Employers will need to justify why vaccination is necessary, consider- ing the balance between the employee’s individual liberties and the benefit to colleagues and customers in reducing risk of transmission and infection in the workplace.
It is important to remember that this notion of reasonableness is fact-specific.When considering close contact or public-facing roles, such as those in the hospitality sector, there may be a stronger argument in favour of requiring vaccination to enable employers to comply with their health and safety obligations and maintain relationships with their customers.That being said, the issue of mandatory vaccination remains untested at Employment Tribunal level and an untempered reliance on vaccination status when hiring, disciplining, or dismissing employees may well leave employers open to legal action.
3) BEWARE OF DISCRIMINATORY PRACTICES
Blanket policies of compulsory vaccination overlook the reality that employees may have a legitimate reason for not being vaccinated.This can be the case where the employee is pregnant, has a disability, or is simply not yet in the relevant age bracket to receive the vaccine.An inflexible approach that fails to engage with these realities is likely to invite discrimination claims under the Equality Act.
There has been discussion around whether such policies risk discriminating against certain religious groups. However, the availability of vaccines free from animal products fetters the likelihood of such claims.That said, it remains to be seen whether Equality Act protections should be afforded to those who argue being anti-vax is a philosophical belief.
Employers faced with a discrimination complaint would need to be able to justify their vaccination policy as an objective means of achieving a legitimate aim. Hospitality businesses are rightly concerned about protecting the health of their workers and their customers – but consideration must also be given to what the measure would achieve in reality and whether the aim could be achieved through less intrusive means. Given that no vaccine is known to be 100% effective, and that social distancing is likely to remain part of our lives for some time to come, it may not be justified to discriminate where an employee could be re-deployed or otherwise abide by social distancing guidelines. In these difficult cases, it is important that employers’ actions are considered, proportionate and take full account of the facts at hand.
Ultimately, employers are recommended to avoid heavy-handed practices and instead approach vaccination in a cautious and considered way, leading with empathy, encouraging their workforces to be vaccinated, and, in so doing educating them of the benefits that vaccination would mean for the individual, the business and public at large.