Insights

Transitioning employees back to work: mandating a vaccine

As part of our series of articles and podcasts on the transition of employees back to the workplace, we look at an increasing number of issues facing employers and HR teams as the vaccination programme roll out continues and lockdown restrictions begin to ease. 

It remains hotly debated whether employers can mandate their employees to be vaccinated against coronavirus before they return to the workplace. Whilst many people are now hopeful of a return to a more normal life, many employers are finding themselves between a rock and hard place with employees who remain anxious and, in some cases, unwilling to return to their place of work. Employers will now find themselves trying to balance the demands of employees who favour a vaccine and those who may prefer not to or for health reasons cannot receive the vaccine. So, is it possible to make it compulsory with “no jab no job” being touted around by some employers? 

The Government has confirmed that the vaccine will not be mandatory. There are existing rules about providing a safe place of work and maintaining a Covid safe workplace so employees might challenge why a mandatory vaccine is required. Employers will most likely have to make a mandatory vaccine a contractual requirement if they wish to proceed with mandating a vaccine for employees. The difficulty with trying to change contractual terms if that employee agreement is required and may not be forthcoming.  It is not recommended that employers impose a change on employees or force employees to be vaccinated which raises the risk of breach of contract, unfair dismissal and constructive unfair dismissal claims.  There is also scope for discrimination claims based on philosophical and religious belief to be mindful of.    

In some sectors such as health care, leisure, and hospitality it may be viewed as a reasonable instruction for employers to require employees to be vaccinated. Disciplinary action against an employee who refuses the vaccine should be avoided. It is worth engaging with the employees, considering the reasons for their objection, any other duties they could be redeployed to or a hybrid working arrangement to reduce their contact with other employees.   

Employers are recommended to now put in place a policy on vaccination. It is recommended that employers consult with employees, run awareness campaigns with your workforce, signposting employees to official sources of guidance and information about Covid-19 and the vaccination programme and the need to maintain a covid safe workplace.

Other issues employers should also bear in mind are confidentiality and data protection. Ensure that confidentiality is maintained for employees who express concerns or anxiety about the vaccine or return to work   It’s also important to continue to hold and process data about your employees in the correct and lawful manner and in regard to vaccination, consider whether your organisation needs to retain information about this, about objections or consents to vaccination and for how long that data should or needs to be kept. Keep data privacy notices up to date as well as corresponding polices in employee handbooks. 

If you need assistance with any of the issues discussed in this article, contact Judith Curran on 01689 887 812 or email judith.curran@cwj.co.uk.  

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