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

  1. Vaccination
    1. 1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 
    2. 2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?
    3. 3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?
    4. 4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?
    5. 5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).
    6. 6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 
    7. 7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?
    8. 8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?
    9. 9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.
    10. 10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 
  2. Testing
    1. 1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 
    2. 2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?
    3. 3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?
    4. 4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?
    5. 5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

Vaccination

1. What options does the employer have to encourage employees to be vaccinated? Can the employer provide a financial incentive to employees? 

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 which is 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.

2. Is the employer obliged to offer vaccines (or can it voluntarily offer vaccines) to employees? Is the employer obliged to support (or can it voluntarily support) third parties or governmental institutions providing vaccines to employees?

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, for example, through offering employees time off to attend vaccination appointments.

3. Can the employer verify which of its employees have been vaccinated? If yes, can the employer make record of these vaccinated employees?

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.

4. Does an employee have a duty to inform the employer whether or not he or she has been vaccinated?

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).

5. Can the employer oblige employees to be vaccinated as a condition of employment? If yes, specify under what conditions. Include in your answer to what extent the nature of an employee's work activities or position is pertinent (e.g. does it matter whether the employee can work remotely?).

Employers could in theory impose vaccination against COVID-19 as 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 as 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 duties to the 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, for example through remote working or other workplace measures.

It is notable that the National Health Service (“NHS”) does not currently mandate vaccinations for its health care workers and staff.  In our view it will be difficult for private employers to successfully argue that it is necessary for their employees to be vaccinated on this basis, although there may be arguments for certain high risk sectors and this continues to be a developing area.

A survey of 750 executives in the UK (carried out by HRLocker in January 2021) shows that 23% of employers plan to mandate vaccination against COVID-19 for their staff, with 51% saying that they would encourage their employees to have the vaccine by providing information (40%), promoting the benefits of vaccination through internal communications (37%), subsidising the cost of vaccination (20%) and hosting walk-in clinics (15%). In relation to recruitment, 49% of executives stated that, when presented with equally suitable applicants, they would hire a vaccinated candidate over an unvaccinated one.  This survey follows an earlier announcement that employers have begun to develop IT systems to track whether their workers have been inoculated against COVID-19.

6. Can employees refuse to be vaccinated? If so, is the employee obliged to give the reasons for refusing? 

Yes, employees can refuse to be vaccinated since there is no current obligation for employees to be vaccinated against COVID-19. 

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

7. Can the employer refuse to admit employees into the workplace if they are not vaccinated (i.e. is it possible to make two categories of employees)?

In theory, it is possible for an employer to refuse to admit employees who are not vaccinated into the workplace but this should only be done if it is necessary to meet the employer’s health and safety duties in light of its COVID-19 workplace risk assessment (an example may be in a heath care environment). Employers will need to consider whether duties can be performed safely without this requirement, using other protective measures. 

Employers who refuse to admit employees into the workplace if they are not vaccinated could face discrimination and/or constructive dismissal claims for the reasons referenced above.

8. Can the employer instruct non-vaccinated employees to perform different duties? If so, under which circumstances?

Minimal changes to employees’ duties may be permitted by way of a reasonable management instruction or if the contract of employment allows for such changes. Employees’ core duties are typically enshrined in a contract and significant variation of these duties will usually require employee consent. However, employers may instruct non-vaccinated employees to perform different duties where necessary to comply with their health and safety obligations following a COVID-19 risk assessment (for example, where the duties in question are high risk). We expect that it would not be reasonable to require employees to perform different duties where health and safety risks can be managed in other ways. From an employee relations perspective, it would be preferable to agree such changes to duties rather than seek to impose them. An employer that breaches trust and confidence in the employment relationship without good cause may face claims for constructive dismissal.

9. How should international business travel be managed? Include any local requirements where proof of vaccination is necessary to enter your jurisdiction.

Businesses should follow the latest Government advice and guidance relating to international travel which is reviewed and updated frequently. 

Under current UK COVID-19 restrictions at the time of writing, individuals should not travel unless they have a legally permitted reason to do so which includes essential travel for business or official purposes, where it is not reasonably possible to complete that work from home. Individuals must complete a declaration form for international travel declaring the reason that they need to travel abroad. They may be asked to carry evidence to support the reason for travel. 

To enter or return to the UK from abroad, individuals must currently provide evidence of a negative COVID-19 test before travel, must quarantine for 10 days on arrival and take additional COVID-19 tests during quarantine.

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

10. Which points of discussion or developments are expected in the future? Include any relevant new legislation that will or could be introduced. 

The Government has stated that it will review whether COVID passports or COVID status certifications could assist in re-opening the economy, any changes would not take effect before mid-May 2021.

Employers should bear in mind market forces relevant to their sector, particularly as more businesses start to make decisions on vaccination requirements and testing.

Testing

1. Can an employer oblige an employee to take a COVID-19 test? If so, is the employer required to provide workplace COVID-19 tests? If not required, can it opt to do so voluntarily? 

Subject to our comments at Q14 below, an employer cannot oblige an employee to take a COVID-19 test, although all individuals with symptoms of COVID-19 are eligible to take a free test administered by the NHS.

Employers are not required to provide workplace COVID-19 tests but businesses in England with at least 50 employees can currently opt to provide lateral flow tests voluntarily through a Government scheme.  Everyone in England is also currently to be given access to two rapid coronavirus tests a week from Friday 9 April, under an extension of the government's testing programme.

2. If the answers to the previous questions are yes, how often is the employee obliged to take a test? Can tests be performed by the employer's medical personnel or must they be done by a professional third party?

The UK Government recommends that private-sector employers offer their on-site workforce access to a minimum of two lateral flow tests every week to help identify staff who are carrying the virus without displaying symptoms, reducing the risk of transmission.

Employers can either use their own on-site testing programmes or third party providers for the tests. For businesses with fewer than 50 employees, access to testing is currently through local government authorities.

3. Is an employee obliged to share the outcome of a positive COVID-19 test with the employer?

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 stay at home in quarantine according to measures prescribed by the Government.

4. Can an employee refuse to be tested? Should testing become a mandatory condition of employment?

An employee can refuse to be tested. As there are many reasons that an individual may choose not to take a test, making testing a mandatory condition of employment could be problematic.  However, where the employee needs to be admitted to a workplace in order to fulfil their duties, the employer may require an employee to be tested (as a reasonable management instruction) based on its health and safety obligations pursuant to a COVID-19 workplace risk assessment.  Going forward, it may become more commonplace for employment contracts to contain obligations on staff to submit to testing.

5. Can an employer assign different duties to employees who are unable to present a negative COVID-19 test before entering the workplace?

See the answers for Questions 7 and 8