COVID-19 vaccination and testing in the United Kingdom - employment law perspective

In line with public health advice, employers can raise awareness and inform their employees of the benefits of a COVID-19 vaccination. Employers can also encourage vaccinations among staff by allowing inoculations during working hours and recording the time spent doing so as working time. 

Pending government guidance, there is a risk that offering incentives could be seen as an inducement in breach of the restrictions on advertising prescription-only medicine. There are also risks that incentives could be considered indirectly discriminatory of certain protected groups contrary to equality legislation and, while there could be legal defences to such discrimination, it is likely to cause employee relations challenges. Offering incentives could also expose employers to claims for personal injury/negligence if the employees were, for example, to have an adverse reaction to a vaccine.

There is no obligation for employers to offer vaccines in the UK (and private supplies are not currently available). Employers may choose to voluntarily support third parties or governmental institutions providing vaccines to employees, such as offering employees time off to attend vaccination appointments

Yes, an employer can ask employees whether they have been vaccinated and can make a record of the vaccinated employees. However, vaccination data is special category health data that is afforded additional protections under data protection laws. As a result, employers must ensure that such data is stored with additional protections and, as a minimum, carry out a data privacy impact assessment (DPIA) prior to processing. The key issue will be how that information is used - employers must identify both a lawful basis under Article 6(1), and a condition for processing under Article 9, of the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR). If they cannot do so, any processing will be in breach of the UK GDPR. The lawful bases for processing personal data under Article 6(1) of the UK GDPR include “employer's legitimate interests”, but in order to rely on this category, employers will need to identify a legitimate interest and show that processing is necessary to achieve it, taking into account the employees' interests, rights and freedoms

No, not unless (i) an employer reasonably requires this from employees as part of their health and safety obligations following a COVID-19 risk assessment, or (ii) the employee is contractually obliged (which is unlikely at present).

Employers could in theory make vaccination against COVID-19 a condition of employment for new employees, although there are risks to this approach, such as possible claims for discrimination under equality legislation related to protected characteristics such as age, disability, sex, pregnancy and maternity, religion or (potentially) belief or, theoretically, a breach of trust and confidence, which may entitle the employee to resign and claim constructive unfair dismissal.

Employers could seek to incorporate a vaccination obligation into existing employees’ contracts of employment. However, this is likely to be difficult since it would require employee consent.

Employers have no statutory right to require employees to be vaccinated, but could argue that a requirement to be vaccinated is a “reasonable management instruction” and that failure to comply would be a disciplinary matter. Our view is that it would only be a reasonable management instruction to require vaccination where it is necessary to enable the employer to comply with its health and safety obligations to its workforce following a COVID-19 workplace risk assessment. Such an instruction would likely not be reasonable where workforce safety could be ensured through other means, such as remote working or other workplace measures.

From 11 November 2021, anyone working or volunteering in a qualifying care home in England will be required by law to have a complete course of an authorised COVID-19 vaccine, unless they are medically exempt. This includes third parties such as tradesmen or any other workers who are required to enter the care home premises to work or provide a service.
The UK government has recently confirmed that they will extend this requirement  to those working in frontline roles in the health sector in England.  This change is not expected to take place until April 2022, and will not apply to staff members who do not have face to face contact with patients. 

These changes do not apply in Scotland and Wales. A consultation on whether to extend mandatory vaccination to new recruits who work in health or social care (or who move jobs within healthcare) in Northern Ireland has been announced

Yes, employees can refuse to be vaccinated and, with the exception of the forthcoming measures to be implemented in relation to care homes referred to above, there is no current obligation for employees to be vaccinated against COVID-19.
If an employer requires vaccination as a condition of employment, reasonable management instruction or, with regard to care homes, because it is a statutory requirement, and the employee fails to comply, the employer may have recourse to disciplinary procedures. There are potentially significant employment law risks around this and, as set down in the answer to question 5 above, legal advice should be sought.

At the moment, an employee is not legally obliged to give a reason for refusal to be vaccinated, but the employer may ask for such a reason (subject to the data protection considerations referenced above).

In theory, it is possible for an employer to refuse to admit unvaccinated employees into the workplace, but this should only be done if it is necessary to meet the employer’s health and safety obligations in light of its COVID-19 workplace risk assessment (e.g. if there is a high-risk close contact working environment). Employers will need to consider whether duties can be performed safely without this requirement, using other protective measures. 
Employers who refuse to admit unvaccinated employees into the workplace or treat unvaccinated staff differently could face discrimination and/or constructive dismissal claims for the reasons referenced above.

This will depend on the terms of the commercial lease, the landlord’s COVID risk assessment and the reason for refusing access to staff.

Regardless of whether they are employees or third party visitors, employers will still need to adhere to data protection principles given that vaccination status is special category data, although the legal basis for processing such data may differ depending on the organisation’s relationship with the individual.

Additionally, protection from discrimination extends to a wide category of individuals, from employment/recruitment situations to provision of goods and services. Any decision to require proof of vaccination status and to make a distinction in treatment of different groups should be supported by a COVID risk assessment setting out why such measures are required. This should include consideration of whether workplace safety could be achieved through less intrusive or potentially discriminatory measures.

The UK has not yet implemented the EU DCC although the NHS COVID Pass lets individuals share COVID vaccination records or COVID test status in a secure way such as, for example, when travelling abroad to certain countries or where domestic venues request it.

Use of the NHS COVID Pass is voluntary for individual organisations. However, its use is encouraged in facilities or events where people are likely to be in close proximity to a large number of people from other households for a sustained period of time. Current government guidance provides that this is likely to include settings that have the following characteristics:

• crowded indoor settings such as nightclubs and music venues;
• large unstructured outdoor events such as business events and festivals;
• very large structured events such as business events, music and spectator sport events.

Disclosing to a third party the vaccination or immunity status of individual staff members is likely to breach privacy and data protection rights. The external provider may ask to see an individual’s NHS COVID Pass directly as a condition of entry to the event. The employer could still be exposed to discrimination claims. However, where an individual is denied entry and suffers a disadvantage as a result, the employer should give prior consideration to such a scenario and how such a disadvantage might arise and be alleviated.

Businesses should follow the latest Government advice and guidance relating to international travel, which is reviewed and updated frequently. Scotland, Wales, Northern Ireland and England have their own rules and exemptions – an overview of the guidance on entering the UK can be found here.

Some jobs qualify for exemptions for certain travel-related requirements such as self-isolation and testing. See the UK government guidance here.

If travel for business purposes is required as part of the employee’s role, the employer should bear the costs for testing where necessary.  

However, if an employee has concerns about business travel, employers should explore these with the employee. Health and safety concerns and/or personal health concerns of disabled employees may mean that employers need to adjust their requirements for business travel on a case-by-case basis.

This remains a contentious subject and we expect there will be legal challenges, particularly on discrimination grounds, in the future. 

At present, as noted above, the UK government is consulting on legislating for mandatory vaccinations for frontline workers in the health sector.

An employer may be able to mandate tests in some circumstances where health and safety risk assessments justify it. In these circumstances, employers could either provide lateral flow test kits or direct employees to freely available kits currently provided by the NHS.  

It has become commonplace in the UK for employers to recommend that staff take lateral flow tests before they enter the workplace, without requiring staff to provide or prove the results, but with the instruction that if the test result is positive, they recommend that a PCR test is taken to confirm the result.

Employers are not required to provide workplace COVID-19 tests, but can opt to do so voluntarily and this is encouraged.

If an employer determines that it can lawfully mandate tests prior to employees entering the workplace, this could theoretically be before each day they enter. In the UK, it is common for tests to be self-administered. If an employer did not wish to rely on self-administered tests, it could use a professional third party. However, this would likely be costly. In-house medical personnel are rare in private businesses in the UK.

The employee has no legal obligation to share their COVID-19 test results with the employer. However, in case of a positive COVID-19 test result, the employee will be obliged to inform their organisation and to self-isolate according to measures prescribed by the government.

Employers can put policies in place that require employees not to attend work if they have a positive test result, and this is recommended from a health and safety perspective. Some employers may require evidence of a positive test result in order to qualify the employee for sick pay.

An employee can refuse to be tested although it is difficult to see a reasonable justification for an employee refusing to do so if they are attending a workplace (rather than working from home). It is likely a reasonable management instruction to request a test on entry into the workplace, especially where the company considers that testing on entry is needed based on health and safety obligations, and where an employee presents with COVID-19 symptoms. A refusal may be treated as a disciplinary matter, but the employer must investigate the matter and understand, in particular, the reasons for refusal.

Potentially, yes, but this depends on the circumstances and still carries a risk of potential unlawful discrimination. Please also refer to the answer to Question 7 above.