As the COVID-19 vaccine rollout enjoys success across the UK, many firms will be hoping that their employees are vaccinated as soon as possible to ensure that there are fewer risks when workplaces are encouraged to officially re-open. With sectors such as hospitality and retail also experiencing high levels of pent-up demand after months of lockdown, it is of no surprise that employers want to be able to guarantee the safety of their workforce as people increasingly begin interacting again.

As we’ve seen already, some employers – particularly in healthcare – are considering implementing a ‘no jab, no job’ policy.  While a policy to this effect is understandable in certain settings, it’s vital that businesses understand the potential legal ramifications or risk claims of discrimination or unfair dismissal.

Adding to issues HR professionals need to navigate in the coming months are the rumours that the government is in the process of devising a vaccine certification system. An indication this initiative may be gathering momentum came when cabinet minister Michael Gove visited Israel in April to study the country’s ‘green pass’ system, which affords residents that have been vaccinated or returned a negative COVID-19 test in the preceding 48 hours access to a range of public settings such as nightclubs, restaurants, and theatres.

Should a similar passport system be introduced in the UK, it is possible that some firms may mandate that certification is required for employees to return to the workplace. There is a common consensus that we will need to maintain caution upon our return to the workplace– but what pitfalls and risks do HR professionals need to be aware of?

Ethical consideration
Firstly, firms must be aware of the privacy and ethical pitfalls of a “no jab, no job” policy. At the time of writing, there is no statutory right under which an employer has the power to force their employees to receive a COVID-19 vaccine, and the government has yet to declare any plans to make immunisation mandatory across England and Wales. The government is, however, consulting on whether vaccination should be mandatory for all staff in older adult care home settings where vaccination rates are currently significantly below the recommended levels.

Working on the basis that vaccination is not a statutory requirement, in some very limited circumstances employers might consider dismissing those who refuse to be vaccinated. For example, in working environments such as care homes or private hospitals, where there is an increased risk of COVID-19 being spread and where the impact of an outbreak would likely have serious consequences, employers may be able to demonstrate robust rationale for why their employees must be vaccinated. However, this is an argument yet to be tested in an employment tribunal.

It’s also worth highlighting the discriminatory risks that would accompany such a decision. An employee could only be fairly dismissed if their choice not to be vaccinated is deemed ‘unreasonable’. It’s therefore important for employers to listen to and consider the reasons behind each employee’s choice. Some may have been advised against being vaccinated due to an underlying medical condition – and whereas Joint Committee on Vaccination and Immunisation (JCVI) has recently recommended that “pregnant women should be offered COVID-19 vaccines at the same time as people of the same age or risk group”, we are, anecdotally aware of women who are pregnant who have concerns about the potential impact on their unborn child or fertility.

There are also those who are, for a range of differing reasons, anti-vaccination. If the reasoning for this stance is grounded in conspiracy theories, it is unlikely that this viewpoint would amount to a philosophical belief under the Equality Act 2010, thus denying them protection from discrimination. However, there have been relatively few cases on what amounts to a philosophical belief. Therefore, it is conceivable that an employee could, for example, argue that their objection to receiving the vaccine is based in a genuine belief in natural remedies / holistic medicine and that this should be worthy of protection under the Equality Act.

Consequently, employers should always consider dismissal as a last resort, and should instead ensure that there is no workable alternative arrangement that doesn’t require the employee to receive the vaccine.

What about employees who are off sick as a result of side effects of the vaccine?
Like most vaccinations, it has been reported that each of the vaccinations available in the UK can cause short-term side effects in some individuals, including pain and tenderness in the arm, fatigue, headaches, mild flu-like symptoms, and fever. Therefore, in the majority of cases it is unlikely that employees will need to be absent for any lengthy period of time.

Where employees suffer significant side effects from the vaccine, and as a result are unfit to attend work, ACAS guidance suggests that employers pay employees their usual rate of pay for such sickness absences, as a further means of encouraging vaccination. However, employers may want to consider capping the number of days for which full pay will be received to avoid exploitation of such policies.

Preparing for vaccine passports
Whereas there is little legal precedent for the enforcement of a ‘no jab no job’ policy, all employers are under a duty to alleviate the risk of harm within the workplace under the Health and Safety at Work Act 1974. Employers must be able to demonstrate up-to-date COVID-19 risk assessments. Employers may therefore wish to revisit their risk assessments to consider the possibility of immunisation against the threat of coronavirus, and it is in this situation that vaccine passports may play a role. Firms could feasibly mandate that those who haven’t received the vaccine and are able to work at home should do so until they have been inoculated, although this would depend on the government guidance accompanying a potential certification programme.

At the moment, it is hard to predict what form the UK’s vaccination certification system would take, if any, but there are lessons to be learnt from similar systems that are being implemented around the world. In the US, the Equal Employment Opportunity Commission (EEOC) has agreed that employers can make the vaccine mandatory for employees; a move which has led to legal challenges from several state legislatures, illustrating the mixed sentiment surrounding the scheme. In the UK, the Equality and Human Rights Commission (EHRC) has concerns that vaccine passports could result in a “two-tier society”, which would discriminate against both those who cannot be vaccinated due to medical reasons and pregnancy (although their response to the Covid status certification review came before the JCVI’s recent recommendation about vaccinations for pregnant women)The EHRC has also commented that, “a blanket policy requiring workers to be vaccinated, applied inflexibly, is likely to be unlawful”.

In the absence of a certification programme, an employer preventing unvaccinated staff from returning to the workplace would present a whole host of issues. Employees might argue that their employer was unreasonably imposing a change in their place of work or that they were being excluded from the normal operations of the business and prevented from doing their work effectively. Therefore, in considering the adoption of such a policy, an employer would need to consider what the policy was designed to achieve and whether that aim might be met in other ways. Unless there was a government mandated approach to vaccine passports in the workplace, an employer’s decision to implement such a policy would require a very fact specific analysis.

Finally, employers must remember that the vaccine is not a silver bullet – despite its success, the dangers posed by COVID-19 are still very real. It looks like we will still have to abide by social distancing measures for the foreseeable future, so businesses should be planning for life with COVID-19 in the medium to long-term. Therefore, a vaccine passport scheme, if ever implemented, should only form part of a company’s COVID-19 protection policy, along with whatever other measures are necessary to ensure the continued safety and wellbeing of its workforce.