Looking at the legality of the UK Government's Covid-19 vaccination policy
/In our first blog, we considered the decision by the UK government to require those working in the care sector in England to be vaccinated against Covid-19.
In this blog, we will discuss what implications there may be to an extension of the policy to workers in any health or social care setting within the NHS, for example, no jab, no jab. It is worth noting that the UK government’s consultation on whether to extend the policy to all NHS employees is still ongoing.
Can my employer legally require me to have the COVID vaccination?
If the UK government does decide to extend its policy to all NHS employees, employers in a healthcare setting will have a legal basis under which they can require vaccination. However, as with the policy currently in place for workers in a care setting, some employees may have a reason for refusal which falls within the exemptions already recognised (e.g. health reasons).
Can I refuse to have a COVID vaccination even if my employer tells me to?
While you can refuse to have a COVID vaccination, this may open you up to further disciplinary procedures and could lead to you being redeployed or, if this is not possible, dismissed.
What can an employer do if I refuse the COVID vaccination?
Under the UK government’s Covid-19 law for employees in a care setting, an employee who refuses to be vaccinated and does not fall under one of the exemption categories can be redeployed or, if this is not an option, dismissed. The same options would likely be available if the policy is extended to all NHS workers.
If I’m dismissed, could this amount to an unfair dismissal?
If you have more than two years of service and refuse an instruction to get vaccinated against COVID-19, it will be necessary to consider whether that instruction is reasonable and the refusal itself unreasonable.
The Equality and Human Rights Commission (EHRC) has already stated, with regard to care workers, that the requirement to have one of the vaccinations is reasonable because its purpose is to protect the right to life of residents and other employees. This is on the condition of appropriate safeguards to ensure the requirement is proportionate.
It seems highly likely that the same approach would be taken in other health care settings, with it being considered proportionate to require workers to get vaccinated to prevent the spread of COVID-19 and protect the lives of others.
An employer should consider other options short of dismissal, such as antigen testing, otherwise, this may lead to a conclusion that the dismissal was unfair.
Doesn’t a ‘no jab, no job’ policy go against my human rights?
It has been suggested that compulsory vaccination could infringe an individual’s Article 8 right to privacy or Article 9 right to freedom of thought, conscience and religion under the European Convention of Human Rights. However, any infringement of Article 8 or Article 9 can be justified if it is proportionate and pursues a legitimate aim; including the protection of health and the protection of the rights and freedom of others.
Given the setting in which health care workers operate, it is clear that any extension of this policy would come under the protection of health and the protection of the right to life, meaning that any infringement could be justified and therefore would not be contrary to Article 8 or 9. This follows decisions of the European Court of Human Rights such as Solomakhin v Ukraine and Vavřička v Czech Republic.
What if I can’t get vaccinated because I hold a protected characteristic listed in the EqA 2010? Is this discrimination?
If an employee believes they have been indirectly discriminated against by the extension of the policy because of a protected characteristic (age, disability, sex, race, religion or belief, pregnancy or maternity), they may be able to make a claim for indirect discrimination. However, it is important to note that the current government policy for workers in a care setting only provides for limited exemptions (see our previous blog), such as where the employee is medically exempt.
The government has justified the limited exceptions on the basis that broadening these would make the policy too difficult to implement and the exceptions too difficult to prove which, in turn, could risk undermining the aims of the policy. Based on this, it seems clear that an extension of the policy to all NHS workers could be equally, objectively justified.
I’m happy to get the vaccine, but do I have to disclose my vaccination status to my employer?
Your vaccine status is categorised as private health information and so is protected under UK data protection laws as special category data; however, the Information Commissioner’s Office has confirmed that it would be lawful to collect this data in relation to employee vaccination statuses so long as it is fair, relevant, and necessary for a specific purpose. The processing of this data can be justified as necessary ‘for reasons of public interest in the area of public health’.
Next time…
In Part 3, we look at the legality of ‘No jab, no Policies’ in the private sector.
Want to know more?
If you have any questions about Covid 19 laws in the UK, please don’t hesitate to get in touch. Our team of employment solicitors is highly experienced in advising both employees and employers alike, providing specific expert advice tailored to your particular circumstances. You can also take a look at the other pages on our website, where we explain such as ‘dismissal’ and ‘discrimination’ in more detail.
