March 2, 2021

COVID-19 Vaccinations and the Workplace: FAQs

Can you force employees to have the Covid vaccine? What about disciplinary action if they refuse the vaccine? And is your workplace deemed ‘safe’ if employees don’t have the vaccine?

We’ve compiled a list of your frequently asked questions, answered by our in-house HR and employment law experts.

Can I stipulate that my employees have a Covid vaccine?

There is no government regulation that forces an individual to have a vaccine and we have no reason to think that vaccines would or could ever be made compulsory. You cannot therefore ‘make’ someone have a vaccine, whether for Covid-19 or anything else. You can of course strongly encourage uptake of vaccine in your workforce, for example by giving people paid time off to attend vaccination appointments, and meeting with reluctant individuals to try to understand their reasons and make sure they have the facts.

What about making the Covid vaccination a condition of employment for new recruits?

You should be cautious about doing that, especially at this point. Currently, vaccines are not freely available on demand and at time of writing their deployment amongst the working population is limited because the roll out has started with older age groups. If you eventually do decide to go ahead, there may still be some risks. A recruitment criterion that disproportionately prevents people in specific protected groups (such as people with disabilities, younger people, or people with certain religious beliefs) working for you can amount to indirect discrimination. There are legal arguments to help defend claims of indirect discrimination, but these have not yet been tested in the current circumstances. A facility where vulnerable people are cared for is more likely to have good reason for making a rule like this than, say, an office with few or no routine visitors.

If you do decide to make the Covid vaccination part of your recruitment process, you will need to consider how you manage and monitor any annual booster programme that might be introduced and how you work with people unable to get the vaccine.

How can I make sure my workplace is safe if I can’t ensure everyone is vaccinated?

Vaccination is one of several tools for fighting Covid-19. Although evidence is emerging that vaccines reduce virus transmission, their primary benefit lies in preventing serious illness. There is still a risk of transmission throughout the workplace where workers may continue to carry and shed virus on, for example, their hands and clothing. It’s really important that you continue other measures such as social distancing and hygiene routines etc. Many local authorities run a Community Testing Programme for people without symptoms who need to leave home to work. You may be able to arrange for your employees to have regular lateral flow Covid tests through this.

I have already told my staff they must be vaccinated. Can I discipline someone who has refused?

There is no legal basis for insisting that someone has an injection against their will, so we do not recommend you take this route. We advise that you talk to anyone in this position and try to find out their reasons for not having the vaccine. You may be able to provide them with information and reassure them. If you do go ahead with a disciplinary you should be aware of the theoretical risk of claims of constructive dismissal, unlawful discrimination and breach of contract – as well as possible disquiet and even disruption across your workforce.

Can I ask for an employee’s vaccination record to help me manage Covid risks in the workplace?

This is not unreasonable but bear in mind that at this point we do not have an ‘vaccine passport’ scheme in the UK. Some people are being given cards with their appointments and vaccine type recorded, but this is not necessarily secure, and neither is it universal. It would therefore be difficult to insist, and there may be vaccinated workers who cannot comply. If you do capture this information, remember this is ‘special category’ personal data and you will need to consider how you manage this under data protection law. Remember, schemes may vary within the devolved administrations of Scotland, Wales and Northern Ireland.

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About the author

Audrey Robertson

About the author

Audrey Robertson

HR Consultancy & Insurance Manager, Audrey, has a strong background in HR, Employment Law and related insurances in a career spanning over 15 years leading teams in-house and as a consultant supporting clients across retail, education and the B2B sectors. At Moorepay, Audrey heads up the Policy & HR Consultancy team as well as the insurance claims department. With a strong commitment and investment in employee wellbeing, having studied counselling and coaching, Audrey is a qualified Mental Health First Aider and supports our staff on-site.

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