No vaccine, no job? Can FE Colleges insist their staff take the Covid-19 vaccine?

@Helen_IMHRplus @IrwinMitchell provides a deep dive on the Covid vaccine and staff from a legal perspective 

What has the Government said about vaccination?

There is no legal basis the government can rely on to force people to be vaccinated and the Green Book (which provides information for public health professionals on immunisation) says that a patient has to agree before their doctor can start any treatment. This includes administering a vaccine. The government has repeatedly emphasised that people will not be forced to have a vaccine if they don’t want one. Instead, it has set out to persuade people that the vaccines are safe and that it’s in everyone’s interests to have one so that we can get back to some sort of normality. Clearly, if the government can’t legally compel people to be vaccinated, you can’t frog march your staff to the nearest vaccination centre either.

The government hasn’t published information about vaccinations which is directed at the general public. However, its guidance for frontline healthcare workers is instructive. This explains the benefits of being vaccinated for the individual (reduced chance of catching Covid or becoming seriously unwell if they do) and to the wider population (less likely to infect their friends, family and to the vulnerable people they care for).

Do the rules about health and safety at work provide any guidance about Covid vaccinations?

No. Section 2 of the Health and Safety at Work Act 1974 requires employers to take all reasonably practicable steps to reduce workplace risks to their lowest practicable level, but that doesn’t include procuring the vaccine and offering it to their staff (which would be extremely difficult anyway given the huge worldwide demand for the vaccines).

However, to reduce the risk of catching or spreading Covid to others at work, you can – and should – strongly encourage staff to take the vaccine when it is offered to them. That doesn’t mean that you should relax your efforts to make your workplace ‘Covid secure’ as, until most of the population are vaccinated, these precautions still remain the best way of protecting your staff. Most employers have already put in place systems to limit contact between people and taken other steps to reduce risk. However, if you haven’t already done so, we recommend that you take a fresh look at your workplace risk assessments in view of the evidence that this new strain is between 30% to 70% more transmissible than the one we faced last year.

The government has recently updated its series of guides on working safely during coronavirus and it’s worth checking these to make sure that you are taking all the recommended precautions. We also recommend that you review your individual risk assessments for vulnerable staff.

Is it a ‘reasonable instruction’ to ask staff to take the vaccine?

This is important because, as a matter of contract and employment law, if you can establish that asking staff to take the vaccine is a reasonable management instruction and they refuse, you may be able to justify taking disciplinary action against them for disobedience.

Employment lawyers disagree about whether it is reasonable to ask, and take action against, any member of staff who refuses to be vaccinated. Our view is that it depends on a number of factors – the most important of which is whether vaccination will protect other members of staff or people they come into contact with such as patients, school children, customers, service users etc?

The government says this in relation to health care workers:

‘The evidence on whether COVID-19 vaccination reduces the chance of you passing on the virus is less clear. Most vaccines reduce the overall risk of infection, but some vaccinated people may get mild or asymptomatic infection and therefore be able to pass the virus on. 

‘It is highly likely that any infection in a vaccinated person will be less severe and that viral shedding will be shortened. We therefore expect that vaccinated health and care staff will be less likely to pass infection to their friends and family and to the vulnerable people that they care for.’

The World Health Organisation takes a similar view:

‘When a person gets vaccinated against a disease, their risk of infection is also reduced – so they’re also less likely to transmit the virus or bacteria to others.’

So, it’s not just about the amount of risk an individual is prepared to take in respect of their own health because choosing not to be vaccinated affects other people. That said, the degree to which other people are impacted will vary. At the one end of the scale are health care professionals who, because of the nature of their work, are much more likely to be exposed to Covid and pass it to others. It’s therefore likely to be reasonable to instruct frontline staff to be vaccinated.

You could also argue that it’s a reasonable instruction to ask teachers and support staff to be vaccinated to minimise the risk to their health and reduce the likelihood that students in their care will have to self-isolate with the knock on effects that has on their education. But, it’s much less likely to be reasonable where staff have limited contact with others and there are other measures you can put in place to protect them.

The other issue to consider is that most people haven’t yet been offered a vaccine. The initial roll out prioritises ten groups in order of need. The government has said that it hopes to be able to roll out vaccinations to the rest of the adult population by the autumn. To achieve that it needs to be able to administer two million jabs a week. We therefore recommend that, even if the majority of your staff won’t be offered a vaccine for a while, you start to think about your approach now and keep it under review to reflect any new evidence that emerges about the transmissibility of the virus. We recommend that you create a policy and share this with your staff. That way, you’ll have advance warning of any potential issues.

If we make a reasonable request for staff to be vaccinated, what can we do if they refuse?

That depends on the reason they give you for refusing. Although the vaccine is approved for use in most adults, there may be specific reasons why it’s not recommended for some people. The guide for health workers acknowledges that ‘a very small number of people who are at risk of COVID-19 cannot have the vaccine – this includes people who have severe allergies’. Anyone who is advised not to have the vaccine will, obviously, be able to reasonably refuse to have it.

What about pregnant women? According to the NHS, most pregnant women won’t routinely be offered the vaccine unless they have a high risk of getting coronavirus because of where they work or, if they have a health condition that means they’re at high risk of serious complications of coronavirus. It advises pregnant women to ‘speak to a healthcare professional before you have the vaccination. They will discuss the benefits and risks of the COVID-19 vaccine with you’.

Staff may be worried about having the vaccine. The World Health Organisation refers to this as ‘vaccine hesitancy’ and, in 2019 said this was one of the top ten threats to global health. It also appears that some groups are more reluctant than others to have the vaccination. For example, SAGE found vaccine hesitancy was highest in Black or Black British groups, with 72% stating they were unlikely/very unlikely to get the jab because of concerns about the risk and a lack of endorsement from trusted providers and community leaders. We recommend that you discuss their concerns and signpost where they can obtain reliable, impartial information before taking any sort of action against them.

You may also have to consider whether individuals who refuse the vaccine are protected under the Equality Act 2010 on the basis of their religion or philosophical belief. There are a small number of religious groups that disapprove of vaccinations on the grounds that they ‘interfere with divine providence’. Other groups – such as vegans – may disapprove of the vaccine because animal products have been used in their development. Although veganism is a protected belief, the Vegan Society (which may not represent all vegans) has published its response to the Covid-19 vaccine which accepts that the vaccination ‘will play a fundamental role in tackling the pandemic and saving lives’ and encourages vegans to look after their health and that of others so that they can continue to be advocates for animals.

If your policy adversely affects people from a protected group (race, age, sex, disability and religion or belief being the most likely) it will potentially be indirectly discriminatory and, if challenged, you’ll have to justify your approach.

Anti-vaxxers subscribing to the myriad of conspiracy theories doing the rounds are unlikely to be protected because they have to show that their beliefs are worthy of respect in a democratic society. 

Can we dismiss anyone who unreasonably refuses to be vaccinated?

Potentially, yes, provided you can show that taking the vaccine is a reasonable management request. You must consider alternatives first – such as permanent homeworking or moving them to a role where they don’t come into contact with many people and consider the reasons why they have refused. 

You’ll also need to warn the employee and give them a final opportunity to comply before deciding to dismiss them, which should then be subject to a right of appeal. Dismissal should be on notice.

Given the potential to get this very wrong, we strongly recommend that you take legal advice before taking any action against someone who has refused to be vaccinated.

Can we insist that our staff tell us if they’ve been vaccinated? 

That depends on whether asking them to be vaccinated is a reasonable management instruction. If it is, you’ll need this information to check compliance. Information about who has been vaccinated will constitute sensitive personal health data. The same will be true of information about who has not been vaccinated and why. You’ll need to comply with GDPR rules on processing special category data, which means that you have to identify the lawful basis you are relying on for monitoring, update your Privacy Notices and only retain the information for as long as it’s needed. Our GDPR experts can help you with this.     

If you can’t demonstrate that asking staff to be vaccinated is a reasonable management instruction, you can’t insist they provide you with this information. Plus, you probably shouldn’t even be asking staff to volunteer this information unless you have a good (lawful) reason for needing to know the answer.  

Helen Dyke Senior Associate Solicitor in the Employment Team at Irwin Mitchell.