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Coronavirus vaccination – what are my employment rights? 08 Mar 2022

A lot has changed since the start of the pandemic and vaccine rollout, including the government’s advice about working from home in England.  

The Government is no longer asking people in England to work from home, and since 24 February 2022 has removed the legal requirement to self-isolate if you test positive for COVID-19 or if you are an unvaccinated close contact. You can read the government’s current plan for living with COVID-19 in England here.  Different guidance is in place for people living/working in Wales, Scotland and Northern Ireland.

So what are your rights if you are an unvaccinated employee? Can you refuse a demand from your employer or a prospective employer that you are vaccinated? Can you be paid less if you are unvaccinated and off work because you have Covid?  This and other related questions are considered briefly below.

Can my employer encourage me to get vaccinated? 

Alongside an employer’s obligation to take all reasonable steps to protect its workers (and others) from risk to their health and safety, Public Health England are asking all organisations to help persuade staff to get vaccinated.

So, whilst your employer can encourage you, they cannot force you to be vaccinated - that is your own personal choice.  Your options, and some of the potential claims you may have if your employer takes action if you are not vaccinated are discussed below.  

Can my employer ask me if I have had a Covid-19 vaccine? 

Yes, but the extent to which it would be reasonable for them to ask will depend on the sector within which you work and the type of work you do. There will also be data protection implications of them asking you as data about your health, including your vaccination status, is likely to be considered ‘special category’ data. In such cases, the data is sensitive and your employer must put in place additional safeguards to protect it.  

Am I entitled to paid time off to attend a vaccination appointment?

Unless either your contract of employment or one of your employer’s policies confirm you will be given paid time off, there is generally no absolute entitlement to given paid time off to attend a vaccination appointment.

Some employers will give people paid time off as they might see it as in their interest to do so: ensuring people are vaccinated could help protect others in the workplace (alongside customers and other visitors), and minimise staff absences.  

If you have a disability (as defined by the Equality Act 2010) and, as a consequence, face additional difficulties in attending any appointments, your employer should consider letting you have paid time off as a reasonable adjustment.  A failure by an employer to comply with the duty to make reasonable adjustments is a form of discrimination. 

Can my employer order fully vaccinated staff to come back into the office? 

The government is no longer instructing people to work from home if they can and so your employer is in a stronger position to ask you to return to the workplace. 

Your employer has a duty of care to you and your colleagues, and it must therefore implement safety measures, in line with their health and safety obligations and the latest government guidance, before insisting on your return.  But you cannot automatically refuse a reasonable management instructions to return to your workplace without good reason.

All employees (regardless of their length of service) have the right not to suffer a detriment or be dismissed if they leave, or refuse to attend their workplace in circumstances where they reasonably believe there is a risk to themselves (or someone else) being exposed to serious and imminent danger.  That said, the situations where someone might be able to argue there is serious or imminent danger (which they could not be reasonably avert) are likely to be rare so you should take advice.

As mentioned above, if you have a disability your employer should consider allowing you to continue to work from home as a reasonable adjustment if attending the workplace would otherwise place you at a substantial disadvantage.

Can my employer make me get a Covid-19 vaccination? 

As above, your employer cannot compel you to be vaccinated. That said, depending on the circumstances, they could make it a workplace requirement that staff must be fully vaccinated, provided that this is reasonable in all the circumstances. 

Before insisting on everyone being vaccinated, your employer will need to consider its position very carefully.  With other safety measures available, e.g. social distancing, wearing of face coverings and regular cleaning, it may not be easy for employers to justify making it a requirement that everyone is vaccinated. 

Could an employer have paid someone who was not vaccinated less if they got Covid or had to isolate?

Anyone that was required to self-isolate by law was entitled to receive at least SSP, regardless of their vaccination status.  Some employers decided to change their sick pay policy so that anyone who is unvaccinated and was unable to work because they were having to self-isolate due to close contact was not entitled to any enhanced company sick pay.

The legality of an employer reducing any enhanced company sick is dependent on a  number of factors including whether the entitlement is contractual or discretionary, what the contract and/or any policy says, how the employer has implemented any change, and the reason why the employee had chosen not to be vaccinated.  

The above said, on 21 February the Government announced the removal from 24 February of the legal requirement to self-isolate if you test positive for Covid-19 or if you are an unvaccinated close contact and the removal of the Covid-19 provisions within SSP from 24 March.

You should take urgent advice if you think you have not been paid correctly.  We can discuss your options and any potential claims you may have. 

Can my employer pay me less if I’m unvaccinated and off sick because I get Covid?

Technically, yes.  However, the legality of your employer reducing any enhanced sick pay will depend on a number of factors including: whether your entitlement is contractual or discretionary, what your contract and/or any relevant policy say, how your employer implemented any change, and the reason why you have chosen not to be vaccinated.  

You should take urgent advice if you think you have not been paid correctly.  We can discuss the potential claims you may have, your options and the steps you should be taking to help resolve the issue. 

Can I be dismissed for refusing to be vaccinated? 

If your employer terminates your employment because you are not vaccinated, and you have more than two years’ service, you may have grounds to pursue an unfair dismissal claim.  Find out more about unfair dismissal rights in our guide to unfair dismissal.

Before making a decision to dismiss, your employer would need to consider alternatives such as  allowing an exception, redeploying you to another role, or letting you to work from home. 

In addition, you may have a claim of discrimination if you are dismissed because you refuse to be vaccinated, but the reason you refuse is because of a health reason connected to a disability, or a philosophical belief that you hold.  This is because the Equality Act 2010 makes it unlawful for an employer to dismiss someone because of a protected characteristic.  Such cases are always incredibly fact sensitive and there will be situations where an employer may be able to justify any ‘discriminatory’ treatment.  You do not have to be employed for any minimum period of time to pursue a discrimination claim.

Following the repeal of mandatory vaccination laws requiring those working in care settings and on the front-line of the NHS in England on 15 March 2022, it is no longer unlawful for those employers to employ unvaccinated individuals.

Can a prospective employer refuse to offer me a job because I am not vaccinated? 

Yes – potentially. However, it isn’t without some risks, e.g. there are exemptions for individuals who are clinically advised not to be vaccinated and job applicants are protected against discrimination in the same way as employees.

If you need advice, would like to speak to an employment expert or are considering starting any legal claim, join our legal advice service today.  One of our specialist Employment Solicitors will explain your options, what steps you need to take to bring a claim in the Tribunal and the time period in which you would have to do so (generally speaking, it is within 3 months less one day from the detriment, discriminatory act and/or dismissal). 

What should I do if my employer starts saying they want everyone to be vaccinated?

It sounds obvious, but in the first instance talk to them.  If you don’t tell your employer what your reservations are, and why you have them, they cannot take them into account.  If you have been advised not to get the vaccine for medical reasons, make sure you have evidence from your GP to give to your employer.

Having an open (and honest) conversation at the start might just help you both reach an amicable conclusion.  For example, you could ask them to grant you an exception or allow you work from home.

 

Disclaimer: The information and opinions within this guide are meant for general information purposes only.  They are not intended to constitute legal or other professional advice and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances.
 
If you want or require specific legal advice, join our legal advice service. Our employment specialists who will be able to provide expert advice and guidance on your issue. 
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