Written by Nicola Gater
18th March 2021
With the rollout of the Coronavirus vaccine well under way in the UK, there has been lots of speculation about whether employers can demand staff have the jab.
Here’s what we know:
Can I insist on employees getting the Covid vaccination?
In short, no. You cannot force an employee to get the vaccination, as it is not mandatory in the UK and there are no signs that the Government is planning to change this.
However, you can encourage staff to be vaccinated and communicate the benefits of them having it once they are offered it by the NHS.
Employers must take reasonable steps to reduce any workplace risks under The Health and Safety at Work Act 1974, so this means it is reasonable to encourage your teams to be vaccinated to protect themselves and everyone else at the workplace.
In some cases – like in a nursing home – you may be able to issue a ‘reasonable instruction’ for the vaccination, because refusal could put vulnerable people at risk. What is regarded as a ‘reasonable instruction’ does depend on the business, and each case should be treated individually. It’s worth seeking HR support if you find yourself in this position.
How can I encourage staff to take the vaccine?
Good communication will help employees make informed decisions about their vaccination. Keeping staff updated with the facts and data supporting the effectiveness of the vaccine is a good place to start. Line managers also need to be aware of your approach as a company and how to communicate with staff who may be reluctant to have the vaccine or refer to HR if necessary.
Consistent communication is key here, and you should try to update employees whenever you can – you may even want to hold a workshop or training session with a medical professional who can answer any questions and provide reassurance to team members.
What if my employees refuse the vaccination offered by the NHS?
Not everyone will be so enthusiastic about the vaccine and you may find you have a minority who will be reluctant or refuse to have it.
You should listen to any concerns employees have around vaccination with empathy and understanding. Reassure them where possible and if appropriate, signpost them to legitimate and reliable sources of information so they can make an informed decision. They may become more comfortable with the idea of the vaccine later on during the roll out, so they may change their mind in time.
Regularly review your risk assessments and explore any increased risks that arise from unvaccinated workers. You may need to explore other ways of Covid secure working such as continued working from home, social distancing within the workplace, screens or the use of PPE. You could also consider temporarily or permanently changing the employee’s work responsibilities or role if this could enable them to work remotely or in a safer working environment, in order to reduce risks to themselves and others.
What if an employee can’t have the vaccine?
A small number of your staff may not be able to get the vaccine because of a medical reason such as pregnancy or an allergy. Taking action against these individuals could be viewed as discriminatory.
For these employees, where the reason is genuine, you should take other steps with regards to health and safety – undertake an individual risk assessment and implement measures to reduce the risk to themselves and others, for example by making sure they have a secure working environment, allowing them to work remotely where possible, or considering a different role.
What other steps do I need to take?
It would be useful to develop or update your Covid policy, outlining the business’s view on vaccination and Covid security and explaining the expectations on managers and employees.
You should also update Covid risk assessments to reflect an increasingly vaccinated workforce and the gradual lifting of Covid workplace restrictions. Rick assessments may find that Covid secure measures are required for your particular workplace for some time to come, especially if some workers are not vaccinated, or if Covid rates fluctuate through different seasons.
Can I dismiss someone who refuses to be vaccinated?
Normally, failure to follow an employer’s reasonable instruction can lead to disciplinary processes and dismissal. But whether or not having a Covid vaccine is reasonable in your business should be determined on a case-by-case basis.
There would be a risk of unfair dismissal, discrimination and other claims if you decided to take action against an employee for refusing vaccination, so make sure you have fully investigated the circumstances before starting a disciplinary process.
Can I ask staff if they have had the vaccine before returning to work?
Yes, you can ask whether employees have or have not been vaccinated but you need to have a good reason for needing to know – such as the safety of other employees if no other safety measures can be implemented. Do remember this information is sensitive personal health data so you will need to comply with GDPR rules. If they refuse to tell you, then whether or not you can take any action against them may depend on your type of business and the role the employee undertakes.
What about travel?
If you typically have visitors or large numbers of people going in and out of your workplace, you will need to consider whether these people are encouraged to have been vaccinated too and how this is communicated to staff.
Once travel restrictions are lifted, you will also need to consider providing vaccines to employees who travel for work in the same way they may need other vaccinations. If an employee needs to travel for their work, and refuses to be vaccinated, you may find they are no longer capable of carrying out their role. If no other work can be found for them, it may be fair to dismiss them, but only after a full investigation of the circumstances and exploration of all alternative options.
Can action be taken against employees with high levels of Covid related absence if they have not been vaccinated?
It is entirely possible that some employees who have already had a period of self-isolation and have since returned to work may need to self-isolate again.
Individuals may have to self-isolate with symptoms that turn out not to be the virus, even if they have had the vaccine or be instructed to by Test and Trace. Therefore, whether someone has been vaccinated or not it may be sensible for employers to reconsider disciplinary action in relation to sickness absence.
Under normal circumstances, employers can ask for proof of continued illness after seven days of absence through a GP’s fit note. However, given the requirement for continued self-isolation if symptoms remain after seven days, any proof required should be limited to the isolation notes that can be obtained from the NHS on this link: https://111.nhs.uk/isolation-note/
Remember that if employees are concerned about disciplinary action, they may attend work when unwell or return to work before they are fully recovered. Not only are sick employees likely to perform poorly, but they also risk infecting other employees, which will result in increased staff absence.
In the future, if Covid is reduced to a less prevalent illness much like the flu, then it may become fair to include absences from work due to Covid infections in your absence management triggers, which will encourage employees to do all they can to protect themselves against it to avoid their sickness absence reaching unacceptable levels. This may encourage employees to have the vaccine, but it will remain their choice, and action could not be taken specifically because they have not had the vaccine. Current advice remains to exclude Covid-related absences from your attendance management triggers.
How can I avoid / manage conflict in the workplace between those who have and haven’t been vaccinated?
If you have a team in which it becomes known that someone does not wish to be vaccinated, it’s important to tread carefully. This is just one of many areas where people have different personal views which need to be managed in the workplace.
For those concerned about health and safety, explain that your ongoing risk assessments take into account different levels of immunity within the workforce and reassure them of your Covid-secure measures.
Where conflict within a team becomes an issue, this should be managed sensitively as you would manage any other different personal views. Encourage the team to be professional and respectful to each other even if they disagree, and refer to your Dignity at Work policies to ensure any conflict is not perceived as bullying or harassment. Reluctance to be vaccinated may be due to underlying health issues, disabilities or religion so employers must ensure no one is discriminated against because of these views. This might be a good time to repeat your Dignity at Work or Diversity and Inclusion training across your workforce.
Can an employer force staff back to the workplace once they have been vaccinated?
Employers and employees should continue to adhere to the national and local restrictions whilst they are in place, which still apply to those who have had the vaccine. As restrictions start to ease and the “stay-at-home” order is lifted, employees who have been vaccinated may still not be comfortable with returning to their workplace. Discussion and consultation is important as always; listen to their concerns and reassure them of your safety measures, and explain the business rationale for needing them to return. The aim is to find a solution that works for the business, but balanced with the needs of the employee wherever possible.
I want to carry out workplace Covid testing, can I enforce this?
If you want to test your employees for coronavirus, you’ll need staff to agree beforehand. Talk to your teams about the benefits and how the testing will work, how they will get their results and the process that will be followed if someone tests positive for coronavirus. You’ll also need to share how you plan to use, store and delete testing data, in line with GDPR.
As of March 2021 all businesses in England are now able to register for the government’s free COVID-19 workplace testing programme. This includes businesses with fewer than 50 employees. You have until 31 March to register for the scheme, which will remain free until the end of June. To be eligible to order these tests for your employees your business has to be registered in England and your employees cannot work from home.
As an employer you should keep up to date with latest advice from the UK government and maintain open and honest communication with employees. If you have any questions about employee vaccinations and what this means for your business contact one of our team at firstname.lastname@example.org.
We will continue to keep this blog post updated as things develop and change.