Mandatory COVID-19 vaccinations and medical exemptions continue to dominate the headlines. The legality of "no jab, no job" policies or reducing sick pay for unvaccinated staff raises many challenging issues, as Blake Morgan’s Matthew Smith explains.
This article was first published in the Western Mail on 24 January 2022.
Can employers enforce mandatory vaccinations?
It depends on the sector and where you are based in the UK.
Currently, there is no legal right to force employees to take up the COVID-19 vaccine other than in the care sector. From November 2021, those working in a Care Quality Commission (CQC) registered care home in England must be vaccinated. From 1 April 2022, a similar provision will apply to “frontline” staff in the wider healthcare sector, although again only in England. The requirement will apply to CQC-regulated health and social care staff, including NHS staff, who have direct face-to-face contact with service users. It will include non-clinical workers such as receptionists, porters and cleaners.
There is no such requirement in Wales. Welsh Ministers do not see the need for compulsory measures in the health and social care sector, preferring to encourage people to have the vaccine.
What about other sectors?
Employers in the UK are taking a more cautious approach to introducing a “no jab, no job” policy than their US counterparts. This may be due to the lack of a legal right to enforce mandatory vaccinations and possible discrimination claims. An individual may not be vaccinated because of an underlying medical condition or because they are pregnant or because of religious or philosophical beliefs. A blanket vaccination requirement may be discriminatory in these circumstances, unless the employer can show that it is justified.
Encouragement for unvaccinated workers
Many UK employers have instead been encouraging their employees to be vaccinated on a voluntary basis, by giving paid time off for vaccination appointments, providing guidance on the vaccine and discussing any concerns with staff. This is in addition to making workplaces COVID-19 secure with measures such as social distancing, regular testing and working remotely.
Some employers have announced that they are requiring staff to be vaccinated. To defend possible discrimination claims, they would need to show that a vaccination requirement is a proportionate means of achieving a legitimate aim – for example, ensuring the health and safety of employees, customers or service users. Cases will focus on whether it was proportionate to require vaccination or whether there was a different way to achieve the same aim.
Proving that mandating vaccines is necessary to carry out the role will be difficult for many organisations and perhaps more so in Wales, given that the Welsh Government has decided against mandating vaccinations even in the health and social care sector. As well as being potentially discriminatory, a mandatory vaccination requirement could result in an unfair dismissal claim if an employee is dismissed because of their vaccination status.
Many staff talk openly about having been vaccinated but can an employer ask staff directly? Possibly. Employers may want to know for workplace risk assessments. An employee’s vaccination status is “special category data” and is protected under UK data protection law. Generally, consent would be needed to process this information and arrangements made to keep it secure and limit access to it. Employers must also set out clearly why they require the information. Depending on the role and sector, it may be difficult for employers to justify such a request.
An increasing number of employers are reducing contractual sick pay as an alternative to "no jab, no job" policies, to incentivise vaccine uptake. The rules on self-isolation are complex and change frequently. Self-isolation is required where a person has been in contact with someone who has tested positive for COVID-19 or because the individual has tested positive themselves. Importantly, in the context of being a contact, self-isolation is required for an unvaccinated person where it wouldn’t be for someone who is fully vaccinated.
Sick pay cut for unvaccinated workers
Ikea, Next, Wessex Water, Morrisons and Ocado have recently announced cuts to contractual sick pay for unvaccinated workers who have no mitigating circumstances and who have to self-isolate due to exposure to a positive case. These employees will only receive Statutory Sick Pay (SSP) if they qualify, which is currently £96.35 a week (increasing to £99.35 in April). SSP is the minimum amount employers must pay if an employee is off work due to illness. It cannot be reduced or removed by the employer.
All these organisations have confirmed that they will continue to pay full contractual sick pay to unvaccinated workers if they test positive.
These sick pay initiatives indicate how employers are managing the pandemic, in particular the recent surge in cases with its impact on staffing and costs. They may have wider consequences though – could employees be less likely to disclose their COVID-19 status to avoid forfeiting pay?
Care required to avoid discriminating against unvaccinated staff
Reducing contractual sick pay for some unvaccinated employees could also be indirectly discriminatory. Again, employers will have to justify this - a careful "case-by-case" assessment is crucial, rather than unbendingly applying a sick pay policy. Employers will also need to ensure that any variation to contracts regarding new sick pay schemes are implemented legally and fairly.
Mandatory vaccination policies and the reduction of contractual sick pay have not yet been tested in the Employment Tribunals so there’s an element of “wait and see”. With large parts of Europe and the US displaying an increasing intolerance towards the unvaccinated population, our expectation is that reducing contractual sick pay will become more prevalent but that many employers will remain reluctant to implement a “no jab, no job” policy.
For more details of mandatory vaccinations in the care sector in England see our article here and for the imminent introduction of mandatory vaccinations in the wider health care sector in England see our article here.
Contact our employment team if you need legal advice on unvaccinated workers.
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