The right to go to work – the employer as regulator in the UK

Wednesday 22 December 2021

Kim Wedral-Rooke
Taylor Vinters, London 

May an employer insist on vaccination as a condition for visiting the workplace?

Insisting on vaccination as a condition for visiting the workplace is possible, however, this option comes with a high risk.

One of the reasons for this is because there is currently no government advice or legislation in the United Kingdom that permits mandatory vaccination for employees or workplace visitors (except in certain sectors mentioned below). As a result, there is a significant legal risk for most organisations if they take a blanket approach to this issue.

For starters, if an organisation wants to avoid the key legal risks (potential discrimination claims and arguments that the employer has breached the implied duty of trust and confidence with its employees) when adopting a mandatory vaccination policy for workplace entry, it needs to consider including exceptions for employees/workplace visitors who cannot accept the vaccine for reasons protected by UK equality laws (eg, disability, religious belief, etc).

Organisations may, however, be able to justify a blanket approach if, following a bespoke Covid-19 risk assessment, they conclude that there are valid health and safety reasons for imposing mandatory vaccinations for entry to the workplace; or there is otherwise sound justification for any such requirement. In practice, this is likely to be rare, because organisations should always consider whether there are less intrusive means that might achieve the same reduction in risk for existing staff/personnel. Examples of this may include, social distancing, wearing masks, increased frequency of testing and sanitisation.

In all circumstances, it would be advisable for an organisation to have some policy wording or statements that reflect any outcomes of their own risk assessment and the general approach they have adopted on vaccination, together with their own justifications.

From our own experience, many UK employers/organisations are not mandating vaccination for staff or workplace visitors, but are instead opting for an approach of education and open discussion with individuals. In particular, this means asking people why they have, or have not, decided to take the vaccine and thereafter encouraging uptake by outlining its key benefits for the workforce as a collective.

There are a few notable exceptions to this that are largely sector-specific. For example, the law has recently changed for workers in the regulated care home sector and since 11 November 2021, it is mandatory for persons within this sector to be vaccinated, unless they are exempt. This law is subject to a 16-week grace period from 22 July 2021 to allow workers to receive both doses of the vaccine. In addition, on 1 April 2022, legislation will come into force making vaccination a requirement for frontline health and social care workers.

May an employer insist on an employee being tested for Covid-19?

Insisting on testing is permissible in the UK, however, similar to forced vaccination, any mandatory policy comes with its own risks.

Since 19 July 2021, employers and registered businesses are no longer provided with free lateral flow tests from the UK Government; although employees continue to be eligible for this for private use. Presently, there is no obligation on an employer to bear the costs of supplying testing kits for employees’ use. However, the employer should discuss any issues surrounding testing with employees and develop a workplace policy, in consideration of appropriate legal advice.

There are some increasingly compelling arguments for employers who wish to insist on Covid-19 testing for staff. Namely, following the easing of social distancing requirements, when working at the office, workers are having to spend considerable amounts of time in closer proximity to each other. There is also no longer a requirement in the UK to wear masks in and around public spaces and therefore this could be seen as increasing potential transmissibility risks.

However, many workplaces are still encouraging staff to continue to adhere to some of those measures. This situation, especially, means that a blanket approach to mandatory Covid-19 testing does raise some risks. These include, for example, data protection-related issues, given the employer will be processing employees’ test results. In essence, the law permits such processing, if there is a good reason for collecting the information. Overall, if employers wish to mitigate risks around a mandatory testing policy, they should be encouraged to carry out their own risk assessments (as mentioned above).

Some other key considerations that employers need to factor in when considering such a policy are:

  • Whether testing is to be done at home, or if the employer will provide testing services on-site?
  • Will employees be responsible for their own test results, or will the employer be handling any special category data?
  • Will employees be paid during any self-isolation period?
  • What is the procedure, if an employee tests positive?
  • How should the employer record a positive result and a period of self-isolation.
  • What will the employer do if employees refuse the tests?

May an employer dismiss an employee who refuses vaccination?

As vaccination is not mandatory, save for the few exceptions mentioned above, the dismissal of an employee as a consequence of a refusal to accept vaccination is likely to bear considerable risks to the employer. This is likely to render any dismissal by the employer as being potentially unfair and potentially discriminatory. Such a case will require specific legal advice.