Careers Q&A
Careers Q&A: No jab, no job? A
s we emerge from lockdown, many employees have concerns about returning to work. Blair Wassman discusses queries on COVID vaccinations and the possibility of COVID passports. Unfortunately, some employees are now facing redundancy, some after a period of furlough, leaving many employees unsure of what redundancy payments they are entitled to and how lump sum termination payments are taxed. At work, people openly discuss whether they have had the vaccine against COVID. I don’t feel comfortable with this and for private reasons I may choose not to have the vaccine when offered. If work ask, do I have to declare if I have had the vaccine? The answer is not a simple one, and will turn on whether there is a contractual duty for you to provide data (including health data) to your employer if requested to do so, or if you would have to provide this information in compliance with your implied duty to follow reasonable management instructions. Such an instruction may well be reasonable, particularly in light of the requirement under the Health and Safety at Work Act etc 1974, that employees should co-operate with their employer so far as is necessary to enable the employer to comply with their health and safety duties. However, your employer will need to take care to comply with data protection laws when collecting this data. Health information is classified as “special category data” for the purposes of data protection laws, meaning your employer must comply with higher standards in relation to its processing. They must identify both a “lawful basis” for processing the data and a “condition” justifying such processing. The lawful basis will usually be that the processing is necessary to pursue the employer’s legitimate interests. The “condition” could include processing to ensure the health, safety and welfare of workers and to ensure a safe working environment. What is also apparent, is that your employer should only ask for this information if it has a clear and compelling reason for collecting it. For example, to inform and assist in their risk assessment to put safety measures in place to protect both vulnerable and unvaccinated staff. However, if they have no specified use for this information and are collecting it “just in case”, then this will not be lawful. Your employer should also tell you in advance why they want to collect this information; what it will be used for; and who it will be shared with. If you have concerns about what the information will be used for, you should discuss these with your employer. Employers will need to be careful about disclosing this information and they cannot circulate the vaccination status of all employees, unless there is a legitimate and compelling reason to do so. For example, if the employer is aware certain 30 | LegalWomen
employees are immunosuppressed, a requirement to tell them that they are working alongside individuals who have not been vaccinated may arise. However, this information should not be distributed in a way which identifies those who have been vaccinated or not. The ICO have released guidance on their website regarding collecting such data which employers and employees alike may find helpful. Whilst employers may be able to ask whether you have had the vaccine, there is currently no legal requirement to have it. Certain roles may require it, for example in the health care sector, but employers should approach making vaccines compulsory with extreme caution and properly consider the impact of doing so on the individual’s rights. If discussions are happening more generally amongst colleagues you obviously do not have to participate in such discussions, maintaining your privacy on the issue. What is the impact on work if vaccine passports are required? Whilst nothing has been confirmed, there has been talk of COVID passports or “COVID status certification” in certain industries such as the health care and sports and entertainment sectors. For example, the rumours suggest that “passports” may be required to attend sporting events, and as a result it could be that all staff working at such events may be subject to the same rules. The government has published a series of guidelines regarding COVID safety in the workplace, but no mention of mandatory staff vaccination has been made yet as a means of controlling this risk. Instead, the focus remains on other measures to prevent transmission such as maintaining distance. Employers will need to be mindful that not everyone will be vaccinated when they re-open their offices or workplace - this could be because employees have not yet been offered the vaccine at that time or for personal, religious or medical reasons. As mentioned in the previous answer, employers will need to be cognisant of data protection legislation implications as well. The COVID status certification scheme is currently under review as the government considers whether this would assist in reducing the restrictions on social contact. Importantly, they are also considering the implications of introducing this requirement on privacy, security and equality and whether implementing this certification regime would impact disproportionately on certain groups of people. In addition, compulsory vaccination could be a breach of the rights under the European Convention of Human Rights (which are incorporated into the UK Human Rights Act 1998) including
