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Thousands of businesses have been forced to make critical changes to their HR policies since the global outbreak of COVID-19 in 2020. With staff health and wellbeing an increasing priority as restrictions are relaxed, many will be relying on a universal uptake of the COVID-19 vaccine for the reassurance that employees will be protected.

Some businesses are already considering a mandatory vaccination policy for staff; most notably, Pimlico Plumbers Founder Charlie Mullins made headlines back in January when he proposed implementing a ‘no jab no job’ policy at the building services business. However, there could be serious legal implications if employers rush into such a measure without seeking professional advice and ensuring clear communication with employees on any plans for a vaccination policy.

What Guidance for a Vaccination Policy is Already in Place?

At present there is little guidance for vaccination policies in the workplace for employers to follow. The government is yet to issue any guidance on vaccination policies for privately owned businesses, however workplace advisory expert body ACAS, has advised that “it is best to support staff to get the vaccine without making it a requirement”.

Relevant support measures could involve ensuring that staff are given paid leave to attend any vaccination appointments or if they become ill from vaccine side effects. Introducing a vaccination policy in the workplace remains at each employer’s discretion, however it could be a contentious issue.

Can Employers Force Their Employees to get the COVID-19 Vaccine?

The short answer is no, or at least not for the moment. The government has not made the vaccination mandatory and it has not yet issued any guidance for employers on staff vaccination policies.

However, employers can encourage staff to get the vaccine while listening to any concerns without judgement. It is important to remember that some people have legitimate reasons for not taking the COVID-19 vaccine yet; for example, some medical conditions may preclude individuals from taking the vaccine or some people may not wish to take it because of religious reasons, values or beliefs.

While businesses cannot force employees to have the vaccine, they can implement a voluntary vaccination policy in their organisation. You can speak to an employment lawyer who can help construct vaccination policies and documentation that are bespoke to your needs.

Can Employers Force Employees to Disclose their Vaccination Status?

A person’s vaccination status is sensitive, personal information that is classified as ‘special category data’ under UK GDPR and the Data Protection Act 2018. Therefore, if employers wish to record, or even ask employees about their vaccination status, they need to ensure that they have a legal basis for doing so, and have the facilities available to securely store this data. The Information Commissioner’s Office (ICO) outlines the six lawful bases for processing personal data along with some helpful guidance on their website.

What are the Legal Implications for Employers?

There could be serious legal implications for employers that don’t exercise caution when planning to implement a vaccination policy. Employers should ensure that they give employees the opportunity to raise any concerns they have regarding any vaccination policy plans and take these on board; if they don’t, they could inadvertently cause distress, and potentially discriminate against certain members of staff who may not wish to vaccinate because of their own personal beliefs or health reasons.

Furthermore, if a business fails to establish a lawful basis for recording vaccination data, it could be breaching UK GDPR and face a fine or prosecution.

As current guidance is limited, it is crucial that businesses tread carefully if they wish to implement a COVID-19 vaccination policy. What is important to remember is that vaccines are voluntary in the UK, and – at the moment – there is no legal basis for insisting on employees having the vaccine. To stay on the safe side, speak to an experienced employment lawyer about your options.