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Acas advises employers to encourage and support their staff without making vaccination a requirement, for example, by offering paid time off to attend vaccination appointments. The Acas guidance previously acknowledged that employers may need to make vaccination mandatory where it is necessary for an employee to do their job, for example, where they are required to travel overseas to countries which require visitors to be vaccinated. However, this wording was removed by the 25 February 2021 update to the Acas guidance.
In April 2021, the EHRC warned that blanket mandatory vaccination policies, applied inflexibly, are "likely to be unlawful" due to vaccination not being suitable for everyone as well as the discrimination risks. In the absence of vaccination becoming a legal requirement, an employer cannot force an employee to be vaccinated without their consent. Vaccination without consent could amount to the criminal offences of assault and battery. However, an employer could decide to prevent unvaccinated employees from entering the workplace, or restrict their duties. This could in turn adversely impact an unvaccinated employee's pay.
Even so, a survey by HRLocker in January 2021 revealed that 23% of employers planned to make vaccination mandatory, and 49% of recruiters admitted they would prioritise vaccinated applicants during recruitment. 58% of managers polled by the Chartered Management Institute in March 2020 believed that vaccination should be mandatory. HR software has already been launched to help employers monitor which workers have had the vaccine.
Vaccination is a more significant issue for employers in high-risk sectors, such as the care sector, where employees work with vulnerable individuals. The government is currently consulting on whether to make vaccination mandatory for workers in older adult care homes.
Key considerations
An employer considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should consider the following:
Alternatives to mandatory vaccination
In view of the risks of a mandatory vaccination programme, it is advisable for employers to consider:
Collective consultation with employee or trade union representatives in addition to a sensitive internal communications plan may contribute towards voluntary take-up of the vaccine.
Employers should inform staff of the available information on the potential advantages and disadvantages of vaccination to assist them in making an informed decision. This is in accordance with employers' implied duty to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace and system of work.
Alternative measures could include regular testing for frontline staff, and regular health and safety reviews to ensure that the employer is up to date with, and properly implementing, the COVID-secure guidelines for its particular industry. Employers may also wish to consider allowing an employee to work from home where possible or temporarily changing their role or responsibilities to minimise risk in the workplace as far as possible.
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