23 February, 2022

A lot of questions have been circulating for some time now surrounding the vaccine for COVID-19 and we are here to share some knowledge provided by the REC and hopefully answer some questions you may have.

Can you require your workforce to be vaccinated?

Whether or not the vaccine can be made mandatory in the workplace is dependent on several factors. Those factors being the type of work being done, the place of work and the individual circumstances of each employee.

Imposing such a requirement that forces individuals to be vaccinated would contravene Article 8 of the Human Rights Act 1998, which gives everyone the right to respect for private and family life. Employers should be engaging with their employees and encouraging them to be vaccinated to protect themselves and others which aligns with the Health and Safety at Work Act 1974 which states that employers must take reasonable steps to reduce workplace risks, and employees have a duty to co-operate with their employer to do so.

As employers, those who refuse to have the vaccine must be dealt with carefully to avoid any discrimination for example a pregnant woman who refuses to have the vaccine due to medical advice. If dismissed, this could be perceived as discrimination under the Equality Act 2010.

Other than the Equality Act 2010, any employee with more than 2 years’ service who refuses to take the vaccine is protected from unfair dismissal. Other alternatives need to be considered such as a phased return or continued working from home for example.

Can you ask candidates and employees if they’ve been vaccinated?

Employers can ask about vaccination status of candidates and employees but must ensure there is a valid reason for doing so and consider data protection requirements as well. You must have a lawful basis for processing data relating to the vaccine, which are set out in Article 6 of the UK GDPR. At least one must apply when processing personal data:

  1. Consent: the individual has given clear consent for you to process their personal data for a specific purpose.
  2. Contract: the processing is necessary for a contract you have with the individual, or because they have asked you to take specific steps before entering into a contract.
  3. Legal obligation: the processing is necessary for you to comply with the law (not including contractual obligations).
  4. Vital interests: the processing is necessary to protect someone’s life.
  5. Public task: the processing is necessary for you to perform a task in the public interest or for your official functions, and the task or function has a clear basis in law.
  6. Legitimate interests: the processing is necessary for your legitimate interests or the legitimate interests of a third party, unless there is a good reason t protect the individual’s personal data which overrides those legitimate interests.

 Is it necessary?

To justify collecting the data, the reason must be ‘clear and compelling’. So if you are asking individuals about whether they have been vaccinated and the data is being stored without any legitimate reason and just for the record keeping practices then it is unlikely that it will ever be justified.

However, if you are in a sector in which you work alongside clinically vulnerable people such as the health care sector then it is easier to justify asking candidates and employees about their vaccination status and storing the data.

However, the ICO guidance states that:

The collection of this information must not result in any unfair or unjustified treatment of employees and should only be used for purposes they would reasonably expect. You should treat staff fairly and if the collection of this information is likely to have a negative consequence for an employee, you must be able to justify it. When considering fairness, you should remember that different people are offered the vaccine at different times and some people may not yet have been offered a vaccination."