Written by Daniel Parker, Associate in the Employment practice at Winckworth Sherwood
After over a year of dismay and disruption, the relaxation of COVID-related public health measures in parts of the UK this summer suggests a potential return to some form of normality, whatever that may look like. Badged as “Freedom Day” in the press, the guidance from the Government has seen a removal of almost all restrictions in England, including the longstanding recommendation that individuals work from home. Some employers may well welcome a wholesale return to the office or factory, however, the lessening of restrictions has been tempered by messages advising that the public should continue to take caution and suggestions that a gradual return to any workplace is the most sensible course of action.
While the general uncertainty continues, it is entirely understandable that employers should be tempted to rely heavily on vaccination status as an indicator of reduced risk, and a key factor in introducing policies, plans and routines which make the most of the medical advances to date. Nevertheless, organisations must remain agile and mindful of the challenges posed by managing a partially-vaccinated workforce in what remains a very uncertain and changeable situation.
“No Jab, No Job” & discrimination
Perhaps one of the most controversial responses to the pandemic has been the so-called ‘no-jab, no-job’ approach to recruitment and potentially retention of employment. The difficulty with this is that there are groups who may be unwilling or unable to obtain the vaccine, such as those who have strong religious or philosophical beliefs prohibiting it, or those with certain medical conditions. Equally, many younger workers still await a second dose of the vaccine, due to the nature of the rollout. To the extent that recruitment or employment policies exclude these cohorts or result in them being treated differently – this could lead to allegations of indirect discrimination contrary to the Equality Act 2010 (“the Act”). The Act allows scope for employers to justify that discriminatory impact – most obviously, with cogent health and safety or other viable business reasons – but measures which prevent an individual being employed altogether may not be justifiable as the most legitimate or proportionate response.
There is also anecdotal evidence starting to arise that some employers are beginning to ask their employees to disclose their vaccination status. Although it seems likely that many employees will have no difficulty doing so voluntarily, forcing or requiring individuals to share this information may undermine both their privacy rights and the trust and confidence which underpins the employment relationship, unless there is a very good reason for requiring it. Furthermore, a person’s vaccination status is ‘special category’ personal data under current Data Protection legislation and therefore must be treated with particular caution, sensitivity and purpose. The Information Commissioner’s Office has released clear guidance stating that this information should not be collected ‘just in case’ it may prove helpful. If it is collected and accidentally disclosed, that has the potential to be a particularly serious breach of an employer’s data protection obligations.
Forced return to the office
Furthermore, there are signs of some employers either prioritising or requiring individuals who have been fully vaccinated to return to the workplace. While this has a certain logic given the latest developments in government guidance, there is still potential for indirect discrimination claims, particularly from younger staff who may be keen to return if they live in circumstances unsuited to home working, but are not permitted as they are awaiting a second vaccination. For now, the more prudent approach from an employee relations perspective may be to frame this in a positive way: by encouraging fully vaccinated staff to come in, rather than forbidding those who are not from entering work premises. It is also not helpful to employers that the government has declined to require NHS front line workers and care home staff to be fully vaccinated. This is likely to somewhat dilute the ability for employers to justify mandatory vaccinations as a ‘business requirement’.
Besides the legal risks, any proposal which relies on vaccination status has its own practical issues. Most notably, as NHS guidance states, it may still be possible to catch, carry and spread COVID-19 notwithstanding vaccination. Even after relaxation of the rules, employers will still need to continue to ensure a safe working environment and conduct appropriate risk assessments with that in mind. Furthermore, when seeking to justify return-to-work policies or practices, employers should monitor and ensure they understand the latest scientific guidance to have the best chance of doing so.
Unfortunately, despite some discussion of the idea of a ‘vaccine passport’, there remains as yet no authoritative and easily-usable means of evidencing vaccine status (or accompanying) at present, at least for domestic use. Therefore, any measures which depend on establishing vaccine status will require a degree of trust, taking into account that many people are presently under severe economic pressure.
These are only some of the challenges employers are likely to face and if cases increase again significantly, then there are likely to be yet more to grapple with in the future. Despite the continuing uncertainty, however, there are some small but significant steps which employers can take during this transitional period. The first is to continue to monitor government guidance and adhere to it to the fullest extent possible. Moreover, when intending or considering implementation of internal policies or procedures, employers should consult meaningfully with employees, to allow for evidence-based decisions which have a better chance of support from the workforce, and are less likely to then be the subject of challenges.
Ultimately, it is undoubtedly in both individuals’ and organisations’ interests for vaccination to be as widespread as possible. Employers should do their utmost among their staff to promote and encourage that core public health message, which remains as relevant as ever and perhaps, for the time being, hold fire on any thoughts of mandatory requirements for vaccination.