Careers Q&A: No jab, no job?

Careers Q&A

Careers Q&A: No jab, no job?

As 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 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 the right to respect for privacy and family life (Article 8) and freedom of conscience, thought and religion (Article 9). As these rights are not guaranteed rights and instead qualified, there may be instances where an employer is able to justify this infringement. For example, where there are no adequate alternative measures which could be put in place to mitigate the risk to others within the workplace.

As the COVID status certification remains under review, the position is continuously evolving, but it seems unlikely that the government would implement blanket rules for all employees. The more likely scenario is that there would only be limited instances where it is absolutely necessary to require employee vaccination in order to protect other staff and members of the public, perhaps in the health and social care sector. As a result, employers will need to tread carefully when considering implementing COVID passports or mandatory vaccination for the reasons set out above.

I am negotiating a settlement agreement where I will work my three months’ notice at usual pay and on the date I leave, I will also receive a lump sum in return for giving up any employment claims I might have. What are the tax implications of the termination payments? My employer says that the lump sum is tax free but the provisions are difficult to interpret.

Termination payments may be comprised of many different sums, and their tax treatment will depend on how they are categorised by HMRC. Notice payments or a payment in lieu of notice (PILON) are subject to income tax and national insurance contributions, as are contractual payments which relate to either past or future service (for example, a contractual bonus payment / salary). Since April 2018, certain rules apply to pay in respect of notice periods not worked, and whether part of this sum or all of it constitutes post-employment notice pay (PENP). A special formula is used to determine what portion of this payment is PENP, if any. Given you are working your notice period this point is not covered in detail, but employees should be mindful of instances where they do not work their notice period and receive a contractual or non-contractual PILON payment or a lump sum payment, and whether part of this payment may be PENP.

The Income Tax (Earnings and Pensions) Act 2003 (ITEPA) provides for certain exemptions when you receive a noncontractual payment from your employer in connection with the termination of your employment. Such payments are exempt from income tax and national insurance contributions up to an amount of £30,000. This includes statutory redundancy payments and enhanced redundancy payments. For example, if you receive a lump sum payment of £35,000 the first £30,000 would be tax-free, and the remaining £5,000 would be subject to deductions for income tax and national insurance contributions.

If you are being asked to accept a lump in return for waiving your right to bring any employment claims, it is likely that your employer has asked you to sign a settlement agreement (previously known as a compromise agreement) recording this waiver. If so, the good news is it is a legal requirement for you to seek independent legal advice on the terms and effect of the settlement agreement. In doing so, your legal adviser may be able to assist you with the tax implications on the amounts offered. Employers will often offer a contribution towards the fees in seeking such advice. In certain instances, you may want to consult with a tax or pension specialist where the tax implications are particularly complex, for example, if you participate in a defined benefit pension scheme.

Another consideration when deciding whether to accept a lump sum payment in exchange for waiving your rights, is whether you are receiving payments in addition to what you would ordinarily be entitled to in law, and what the value of the lump sum is compared with the value of possible claims. Your legal adviser will be able to help you ascertain the value of the offer, and whether you ought to be signing the settlement agreement. ■

Blair Wassman

Blair Wassman

BDBF Employment Law

All questions are published anonymously. If you wish to submit a question, please send it to Coral@ LegalWomen.org.uk. No individual replies nor advice can be provided.

Advice on interviews from our Editorial Board:

What soft skills should a candidate demonstrate?

Christina Blacklaws: For me the most important skill (I actually don’t like to call them soft skills as I think this is undermining of their importance!) is that of self-awareness and insight. If a candidate cannot demonstrate these skills then that’s a big red light for me. One-way candidates can successfully do this is through open, honest answers about their own journeys in relation to diversity, equity and inclusion. If a candidate can evidence awareness of their own biases and how they have attempted to address then, I am usually impressed!

Alison Atack: The business of law is all about communication – interpersonal skills with clients and colleagues, oral and written. An ability to build relationships is vital, so listening, understanding and inspiring trust.

Evidence of resilience and self-confidence help you stand out from the crowd. It’s a challenging career, be prepared to explain how have you developed these skills? Teamwork is vital but you will have to use your own initiative, make quick decisions and cope with heavy workloads. What are your coping mechanisms to time & risk management, use of technology and problem solving? Make sure you have appropriate responses with examples.

Karen O’Leary: In an interview, I look for a candidate who enjoys / values working with people, whether it is their colleagues or clients. I consider if they have curiosity. How flexible and agile are they in their thinking, how do they approach problems, can they reverse and approach from a different perspective?

The skills which are sometimes lacking are:

■ Willingness to continue learning

■ An ability to challenge themselves e.g. going outside their comfort zone professionally and culturally.

■ Time management, especially for younger candidates, the balancing of competing interests to get tasks done and manage everyone’s expectations. ■