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With the prospect of universities being allowed to reopen properly again very soon, the vaccine issue remains a grey area.
In the US, Brown University and other colleges recently announced that they will require students to be vaccinated before returning to campus. So far we have not seen UK universities impose similar requirements. However, the question of whether universities as employers can require teaching and administrative staff to have the Covid-19 vaccine is one that falls squarely in the debate that employers up and down the country have been having with lawyers and the government alike.
Pimlico Plumbers were one of the first UK employers to publicise a “no jab-no job” policy back in January, and since then we have seen care-home groups making the vaccine mandatory for staff looking after vulnerable patients. Yet, for most employers, the situation is less clear-cut.
There is currently no legal requirement to be vaccinated and the government has so far shied away from compelling people to be. Michael Gove’s review of the potential use of vaccine passports, expected in June, could alter the position. However, because of the potential for discrimination as well as infringement of people’s human rights, compulsory vaccination is very unlikely.
Employers can encourage staff to get vaccinated (as they may do with a winter flu jab, for example), provide access to medical information, allow paid time off to get the vaccine and provide sick pay for those suffering with side effects. However, insisting that employees are vaccinated could risk exposure to discrimination claims from those whose choice not to be vaccinated is attributable to a protected characteristic (such as a medical condition amounting to a disability, or a religion or belief) or unfair dismissal claims if employers discipline, dismiss or change employee’s contractual terms.
Requiring staff to be vaccinated would engage their rights under the Human Rights Act 1998 (HRA) and as public sector employers, most universities must act in a way that is compatible with the HRA, otherwise they could be subject to judicial review.
Employers are best advised to follow the Health and Safety Executive’s (HSE) guidance on creating a safe environment by implementing social distancing, frequent cleaning, adequate ventilation and good hand hygiene. The government is also working with HE providers to offer twice-weekly asymptomatic testing to all students and staff.
Employers should carry out risk assessments, implement the full suite of measures, consult with employees (and union representatives), monitor effectiveness, and keep risk assessments under review.
Whether employers can refuse unvaccinated staff entry to offices will depend on whether the requirement is necessary and reasonable. Where social distancing cannot be maintained and workspaces cannot be ventilated, it may be reasonable to require employees to wear masks and either be vaccinated or complete regular tests and temperature checks. However, blanket requirements for vaccination, and excluding staff from the workplace, are unlikely to be necessary where alternative solutions are available. The key is to ensure that alternatives are considered, such as extending remote working or introducing screens or PPE, before taking action against employees.
This is a sensitive area as information about health is considered ‘special category’ personal data, which is tightly regulated by data protection law.
The Information Commissioner’s Office has helpful guidance on this topic and advises employers that before collecting vaccination data, they should be clear about what they are trying to achieve and how recording staff vaccination status will help. Use of this data must be fair and necessary, storage must be secure and retention kept under review.
As some may deem the collection of such data an invasion of their privacy (a right protected under the HRA), employers should communicate openly with staff, explain their reasons for wanting to collect the data and how it will be used. The requests for such data should also be optional.
As compulsory vaccination carries real risk for employers (certainly until the outcome of Michael Gove’s review is known), universities must rely on their staff and students to do the right thing. Implementing effective health and safety measures alongside open consultation with staff and addressing individuals’ concerns respectfully, remains the best route forward.
This article originally appeared in the May 2021 edition of University Business, view the magazine here.
Nadjia Zychowicz has versatile experience supporting corporate and education sector clients as well as senior executives in a broad range of employment law matters. Nadjia is meticulous and methodical in style and puts her clients at ease with her approachable nature and direct manner.
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