Employment law: a Covid-19 update for HR professionals

Employment specialists Louise Attrup and Michael Kerrigan spoke at the most recent virtual CIPD Hertfordshire Branch event in September 2021.

Louise and Michael provided a legal update on issues which are topical to this stage in the Covid-19 pandemic as employers grapple with how to keep their people safe and productive out of lockdown and adjust to the ending of furlough.

The webinar was aimed at HR professionals equipping them with vital employment law updates and tools in relation to Covid-19.

Below are the key Q&As from the webinar.

Q. Can employers mandate vaccinations?

A. No, employers cannot force an employee to have a Covid vaccination as this would likely constitute the criminal offence of battery, and any law requiring a person to have mandatory medical treatment would probably contravene Articles 8 and 9 of the Human Rights Act. Even in care homes, where vaccination is mandatory to work in that setting with effect from 11 November, the law does not force employees to have the jab per se.

So, a compulsory vaccination policy refers to where employers voluntarily adopt a policy that employees will need to be vaccinated in order to be offered work or to stay in work.

Q. If any employee did not want the vaccination and is dismissed, could this be considered unfair dismissal?

A. Claims for unfair dismissal could arise if someone is dismissed for not having the jab contrary to a policy. Introducing a policy unilaterally and/or pressurising employees to have the jab could give rise to resignations and breach of contract/constructive unfair dismissal claims. Employees will generally need at least two years’ continuous service in order to claim unfair dismissal, however, this does not apply to discrimination claims. Employers may argue in these scenarios they are dismissing for a fair reason, which could be misconduct, such as failure to follow a reasonable instruction, or some other substantial reason. To have a chance of defending an unfair dismissal claim employers will need to:

1. Show the policy is fair, and that alternative and less invasive/draconian measures are not an option.
2. Show that it is reasonable not to make an exception for this particular employee to justify dismissal as well as going through all of the required fair procedures

Q. Could an employer be accused of discrimination if they dismissed an employer who did not have the vaccination?

A. Claims for indirect discrimination are the main problem area. Indirect discrimination is when there are rules or arrangements that apply to all employees or job applicants, but which adversely and disproportionately impact those with a certain protected characteristic. There are four main reasons for not getting a jab that could have discriminatory consequences if an employer dismisses an employee.

1. Health/disability
2. Pregnancy/breastfeeding/trying to conceive
3. Religion or belief
4. Hesitancy of some racial groups

Q. Can an employer ask for evidence of a vaccination?

A. Asking a job applicant about a health condition prior to offering a job is contrary to s.60 Equality Act 2010, unless the health query relates to the candidate’s ability to carry out the intrinsic functions of the job or it is to decide whether reasonable adjustments are required. The purpose of s.60 is to ensure that disabled applicants are assessed objectively for their ability to do the job in question and that they are not rejected because of their disability. It is not likely in most cases that it will be essential to be fully vaccinated to be able to perform the job – it is a matter of the employer’s preference and policy. It is not entirely clear whether a question about vaccination status would be considered one relating to a health condition. However, employers should err on the side of caution and make enquiries after making a candidate a job offer (which could be made conditional on providing evidence of vaccination).

Q. Can an employer share other employees’ vaccination status?

A. Current employees could be asked to produce their vaccination status consensually, but consent is rarely seen as sufficient in an employment context and so employers should therefore separately identify a lawful basis for processing the data, (a legitimate interest) and show that the processing is necessary. If they cannot do so, any processing may be in breach of GDPR. ICO guidance states that the sector in which the employer operates, the nature of the work carried out by its workers, and the health and safety risks in the workplace, will all be relevant for employers in deciding whether they have legitimate interests to record the vaccination status of their staff. The guidance gives the examples of staff who are likely to come into contact with those infected with Covid19 at work, or who could pose a risk to clinically vulnerable individuals.