Will employers mandate COVID-19 vaccinations for employees in 2022?

The question of whether UK employers may begin to require their employees to be vaccinated is certainly one that will rumble into 2022. In this article, employment partner Emma Clark offers guidance on the current legal position of compulsory vaccination in the workplace and suggests how this issue may develop in the new year.

What is the current situation in the UK?

The UK Government has mandated that frontline workers in the health and social care sectors have to be fully vaccinated as a condition of employment. By November 2021, all care workers were required to be fully vaccinated unless medically exempt, whilst frontline NHS staff workers must be vaccinated from April 2022.

This requirement has not been accepted without challenge. In November 2021, two care workers lost their judicial review in which they challenged the Government’s legal requirement for care workers to be vaccinated. The judge considered the requirement to be lawful, to protect the elderly residents, and held that any discriminatory impact on workers could be justified.

For other professions, the Government has not suggested it will mandate compulsory vaccinations as a condition of employment. However, individual employers may consider whether they can or wish to mandate such a requirement themselves.

How have other countries approached the issue?

Countries across Europe have each taken a different approach. For example, Austria plans to enforce the EU’s first mandatory vaccination policy for its population, with all residents over the age of 14 required to be vaccinated from February 2022. Greece has also announced mandatory vaccinations for the over 60s and Germany is said to be considering a vaccine mandate.

Mandatory COVID-19 vaccination policies have also been announced in countries such as Indonesia and Turkmenistan.

What is the legal position?

The European Court Human Rights’ (ECHR) decision in Spring 2021 was perhaps one of the most influential decisions on this issue. The ECHR held that the Czech Republic’s compulsory vaccination against nine childhood diseases was lawful because the objective was to protect every child against the serious diseases either through vaccination or herd immunity. It was, therefore, ultimately due to a need to protect public health.

When deciding in the care home case, the UK court found this decision to be persuasive.

The employment law issues in the UK relating to compulsory vaccinations in the workforce, outside of the health and care sector, have been covered extensively. Both Acas and CIPD have published in-depth analysis of the issues.

Ultimately, employers need to balance and consider all the risks and issues. Employers are required to take reasonable steps under the Health and Safety at Work Act 1974 to reduce risks in the workplace and they could argue that the scientific evidence seems to state that a workforce which is vaccinated could reduce the COVID-19 risks.

However, employers should tread very carefully before implementing any compulsory vaccination policy. If an employer was to dismiss any employee with over two years’ service because they refused to be vaccinated, they face potential claims of unfair dismissal. Other potential claims may come from employees arguing that their dismissal (or any disciplinary process) is discriminatory against them on a number of different grounds, which could include disability, their belief or their age.

Employers also need to consider data protection legislation and the challenges of processing and storing ‘special category’ data relating to an employee’s vaccination status. Whilst it may appear to be a relatively simple way of managing COVID-19 risks in the workplace, the practicalities of asking staff for their vaccination status is much more complicated.

What can employers do?

The best approach for employers is to educate the workforce on the benefits of vaccination.

If employers want to consider mandatory vaccination for all staff, but the medically exempt, the employer would need to start with a thorough risk assessment and then a policy outlining the employer’s rationale for requiring vaccinations. This should be alongside a staff consultation.

The future

The requirement for COVID-19 passports, depending on their scope, may result in an increase in vaccinations in the workforce, rather than being excluded from certain venues or social events.

We may also find that US parent companies will increase pressure to mandate vaccination amongst their staff in the UK. Other employers may be encouraged by these examples and start to consider if and how they may be able to require their workforce to be vaccinated.