Use the links below to find the latest information on the vaccine roll-out and eligibility across the UK:
- NHS UK: COVID-19 vaccination in England
- NHS Inform: COVID-19 vaccination in Scotland
- Public Health Wales: COVID-19 vaccination in Wales
- nidirect: COVID-19 vaccination in Northern Ireland
Employers should keep up to date with the latest information on the vaccine rollout programme across the UK via these links.
Employers should also remember that the vaccine is just one measure of protection and the extent to which the virus will further mutate is still unknown.
From 1 April 2022 employers are not explicitly required to consider COVID-19 as part of risk assessments but there is an overriding duty to identify workplace risks and reduce them to the lowest level possible. Employers should at least include coronavirus risks in their risk management assessments and consider measures such as a flexible approach to continued home or hybrid working and workplace measures such as ventilation, handwashing, social distancing and the use of PPE even though most legal restrictions have come to an end. There is a specific duty to undertake risk assessments for pregnant workers and these should also be undertaken for at risk individuals, such as the clinically vulnerable and those who may be classed as disabled under the Equality Act. Occupational health may need to be consulted on health and safety measures or reasonable adjustments for example staggering start and finish times so that vulnerable workers can commute during less busy times.
Employers should address individual concerns when raised and stay up to date with the latest plans and advice on the UK government website, covering all UK countries, and adjust their plans accordingly.
Managing vaccinated employees
In the UK, generally, vaccination has not been mandatory and this remains the case. It will no longer be mandatory for all health and social care workers, and volunteers to be fully vaccinated against COVID-19 in order to be deployed as was previously planned. Legal requirements making vaccination mandatory in care homes were reversed in March 2022 (see below).
Health, social care and other employers in England should still try to ensure workers and volunteers, including frontline NHS staff, are fully vaccinated against COVID-19, unless the workers are exempt. However, this is a professional responsibility rather than a legal requirement.
Given that, for public health reasons and to protect themselves and others from disease, it’s desirable to have as many people vaccinated against COVID-19 as possible, employers should encourage staff to be vaccinated and publicise the benefits to improve take up of the vaccine and boosters when individuals are offered these through the NHS.
As COVID-19 vaccination and boosters extend and are repeated throughout the UK, employers must incorporate plans on the implications for their staff, visitors and workplace as a whole, covering: communication to encourage take up and boosters; risk assessment; and vaccine policy. Employers will also need to consider their contractual terms and data protection, disciplinary, grievance and dismissal policies. The key points to consider are outlined below.
Planning for different groups of employees
On 31 January 2022 the UK Government announced a change of policy and has abandoned the previous requirement for health and social care staff to have mandatory vaccinations.
- Care homes: Between 11 November 2021 and 15 March 2022 vaccination was compulsory for all those working in care homes in England. From 15 March 2022 vaccination remains strongly advised for care home staff but it is not compulsory. This means those working in a Care Quality Commission-registered care home for adults are no longer legally required to have two doses of a COVID-19 vaccine to enter the premises. Residents and their visitors do not have to be vaccinated as a legal requirement, although it remains strongly advised that they all do so.
- Other front line health care workers: Proposals for new requirements to make vaccination compulsory for frontline health and social care workers from April 2022 were also reversed.
More information is available in our vaccination FAQs.
Instead of making vaccines mandatory as some other countries (for example Austria) have done the overall UK position is that employers in all sectors are still strongly encouraged to ensure staff are vaccinated against COVID-19, whilst falling short of making this mandatory. Official guidance in health and social care emphasises the professional responsibility of everyone working in that sector has a professional duty to be vaccinated against COVID-19.
Before the care home and NHS development, some employers in other sectors chose to make vaccination mandatory for their workforce. Some employers in other sectors chose to make vaccination mandatory for their workforce. For example, Pimlico (formerly Pimlico Plumbers) originally introduced a ‘no jab, no job’ policy and engaging only new starters who have been vaccinated against COVID-19 and offering to pay for all staff to have the vaccination once it becomes privately available.
There are numerous issues to consider with regards to mandatory vaccination including exemptions, alternatives such as a flexible approach to home working or redeployment to another role, discrimination, human rights issues and the availability of other methods of risk management such as testing or the impact of natural immunity. The balancing exercise may consider health and safety concerns, virus rates, vulnerable colleagues, and the nature of the work. Mandatory vaccination may discriminate based on disability, or religious or philosophical belief.
The Government’s reversal of the legal requirement for vaccination in the health, and social care and care home sectors arguably makes it harder for employers in other sectors to justify mandatory vaccination. However, vaccination is still strongly advised as a matter of individual professional responsibility. Employers who receive job applications from staff they believe to be unvaccinated (for example previously dismissed care home staff) will have to undertake a balancing exercise. Whether to employ unvaccinated staff depends on the nature of the workplace, government advice, risks, other vulnerable staff, and the risk of discrimination claims from an unsuccessful applicant.
Vaccination requires an individual’s informed and voluntary consent and cannot be forced. If employees refuse vaccination, to discharge their health and safety duty, the employer may need to consider other steps that can be taken to protect them. An employer could still consider potential disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care) where an employees’ refusal has serious consequences but this approach is not without risk (as outlined below). Any employers considering this approach must be sure to follow any government guidance that emerges and seek specific legal advice, and should bear in mind the following:
- Warning all staff that vaccination is likely to be a condition of employment
- Reviewing employment contracts (remembering that enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal)
- Any incentives offered should not discriminate against employees with protected characteristics (such as age, disability or belief) who have reasons for not having the vaccination
- Communicating to any employees who have to travel for work especially to countries with mandatory vaccination rules, that the vaccine is likely to be a necessary job requirement
- Any vaccination strategy must include exceptions for employees who cannot accept the vaccine due to medical or possibly belief reasons.
Dismissal for refusal to be vaccinated
For the position concerning staff who refuse, failure to follow an employer’s reasonable instructions can lead to disciplinary processes and dismissal. The current legal approach would normally involve consideration of alternative roles before potential procedures towards dismissal although alternative roles will not be available for may employers.
Whether an instruction to have a COVID-19 vaccine is reasonable has not been fully tested in the higher courts although tribunal cases are starting to emerge. As there is at least a risk of unfair dismissal, discrimination and other claims, employers should consider their position very carefully before moving towards disciplinary processes and dismissal. Being a test case as one of the first employers to dismiss on the grounds of vaccine refusal is likely to be time consuming and potentially expensive.
Whether the employer is entitled to dismiss is not straightforward. The key issue is if refusal to be vaccinated is an unreasonable failure to comply with a reasonable management request. The question of what is unreasonable depends on the particular circumstances of the employee.
Every employment contract contains an implied term that employees must follow their employer’s reasonable instructions. Whether an instruction to be immunised is reasonable depends upon the facts of each case, for example virus and vaccination rates, the nature of the role, the numbers of clinically vulnerable colleagues, the size and layout and people contact in the workplace. For example, employers in a nursing home may be able to issue a reasonable instruction to employees to be vaccinated. An employee's refusal could put vulnerable people at risk. See case law example of Allette v Scarsdale Grange Nursing Home Ltd (2021) concerning the fairness of a dismissal for refusing to be vaccinated against COVID -19. In this case the dismissal was reasonable in the circumstances, however each case depends on its own facts.
Any dismissal procedure must be handled fairly overall including consideration of any alternative roles. Employers in another sector such as accountancy, where it has been shown that work can be done effectively from home, may be in a weaker position and an instruction to be vaccinated may not be deemed reasonable.
An unreasonable refusal by the employee may justify disciplinary action. The employee is under an implied duty to act in the best interests of the employer and colleagues and to take care of their health and safety. This arguably includes reasonable precautions not to infect customers or other employees.
The most likely other potential justification for dismissal resulting from refusal of a vaccination would be incapability or some other substantial reason (SOSR) resulting from the employee’s conduct in refusing to obey. For example, a hospital employer could in theory argue vaccine refusal is too high a risk to vulnerable patients or the employee themselves and is a substantial reason to discipline and then dismiss the employee. Although this is harder to argue now that the UK Government have removed the proposed mandatory vaccine requirement for healthcare staff; vaccination is still strongly advised as a matter of professional responsibility. Employers should always give employees time to decide and should always follow a fair disciplinary and dismissal process before disciplining or dismissing unvaccinated staff.
As well as establishing the potentially fair reason, the entire dismissal process also has to be fair. This must include the usual written, meeting and appeal stages, with the employee being given the opportunity to be accompanied and to set out their rationale for their opposition to vaccination.
An employer can only attempt to defeat an unfair dismissal claim if it can show that the employee unreasonably refused to be vaccinated. Each case will be considered on its own facts, including consideration of other ways in which the employee could continue to work safely without vaccination. If an employee’s vaccine refusal is related to a disability or a religious or philosophical belief the employee may have a direct or indirect discrimination claim as well as a constructive unfair dismissal, breach of trust and confidence and other claims.
The best course of action is for employers to reassure rather than overtly persuade, leading by example and engaging with staff about safety, outlining the benefits of vaccination with the latest information, delivered in a culturally sensitive way.
DISCLAIMER: The materials in this guidance are provided for general information purposes and do not constitute legal or other professional advice. While the information is considered to be true and correct at the date of publication, changes in circumstances may impact the accuracy and validity of the information. The CIPD is not responsible for any errors or omissions, or for any action or decision taken as a result of using the guidance. You should consult a professional adviser for legal or other advice where appropriate.
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