The Government’s vaccination programme is helping to lift lockdown restrictions. At present the Government cannot force individuals to be covid vaccinated as The Public Health (Control of Disease) Act 1984 specifically protects members of the public from being compelled to undergo any mandatory medical treatment, extending to vaccinations. Also, article 8 of European Convention on Human Rights gives protection to individuals from being subject to physical and or psychological harm.
Despite above, on 14th April 2012 the Government launched consultation process ending on 21st May to determine if covid vaccinations should be made compulsory for those working in care homes unless workers cannot have vaccinations because of health reasons (1).
Bearing the above in mind, for employers to try to make covid vaccinations mandatory for their employees, they would need to justify a fair and proper reason for doing so linked to the workplace environment following a covid health and safety risk assessment and where close contact cannot be avoided to carry out the work and although personal protective equipment (PPE) would help but the covid vaccine would provide a further practicable way of mitigating the risk.
The Health and Safety at Work Act 1974
As employers are obliged under the Health and Safety at Work Act 1974 to take reasonable steps to reduce any workplace risks then where an employee refuses without just cause to co-operate with a reasonable management request based on health and safety reasons then that unreasonable refusal could result in disciplinary action; however employers must be mindful of any potential discrimination claims linked to employee’s protected characteristics under Equality Act 2010 over the refusal and thus act fairly to consider any alternative working arrangements.
Where mandatory covid vaccination for employees can be justified, the employer would need to get their employees to confirm their vaccination status and as from 17th May 2021 in England a NHS app will be available to use by members of the public as a vaccine passport to travel aboard (2) which by agreement of the employees, the employer could use as evidence of employees having taken the vaccinations.
Where vaccination data has been obtained from employees, the employer would need to explain to employees why the information is needed, how long it is stored for, how it will be destroyed, what security measures are in place and how the employee can access that information.
Data protection act
Also, covid vaccination information would fall under special category under Data Protection Act and processed only after data protection assessment (DPIA) carried out namely to justify that it arises via a risk assessment to take measures to make workplace environment covid secure; however simply collecting data for monitoring purposes only may fall foul of data protection legislation.
It may be prudent to consider having in place a vaccination policy to avoid workplace disputes to include requiring employees not to ask each other about their vaccination status and making quite clear that spreading untrue rumours about the covid vaccination at work that contradicts government guidance and employer’s own health and safety obligations at work could give rise to formal action.
The article is for general information purposes only and should you require any further assistance on the matter please do not hesitate to call our advice-line team on 01455 852028.
