Does my employer need to know if I’ve had the Covid-19 vaccine?Employers may have to make data protection considerations. The Information Chief Commissioner’s Office (ICO) has confirmed that an employee’s health information is special category personal data. In the context of vaccinations, a permitted ground for processing special category data would be for heath purposes.
“Employers must ensure they are handling their employee’s data with care and the ICO advises that employers only need to obtain confirmation whether the employee has had the vaccine and collecting any more data is unnecessary and excessive.”
Can my employer add an immunisation clause to my contract?If employers want to make the Covid vaccine a contractual requirement, changes in the terms of the contract would need to be agreed by staff. Employers enforcing this change without employees’ express and implied agreement would be in breach of contract and employees would be entitled to resign and claim constructive unfair dismissal. Employers could find it difficult to show this change in terms as reasonable and may struggle to introduce this type of agreement for existing employees. If employers were to introduce an immunisation clause into new starters’ contracts, it would have to be in a reasonable manner, and include consultations with any employees worried about the vaccine for any reason.
“Employers cannot force their staff to get the vaccine or discipline those who refuse to do so.”Overall, vaccinating employees without their consent would be criminal assault and probably be a repudiatory breach of contract. Although there is no case law, dismissing an employee because they do not want a Covid vaccine would likely be considered unfair dismissal as it is unusual for an employer to force staff to undergo a medical procedure. Vaccine requirements could also subject employers to discrimination claims as individuals may not be able to get vaccinated on health or religious grounds.
What can an employer do to encourage vaccination?Employers who are keen for their staff to be immunised should write a non-contractual policy outlining the benefits of getting the vaccine and any arrangements for staff to be immunised. Any employees who refuse the vaccine could be met privately to explain the benefits again, but employers should not force or discipline staff who refuse. Sarah Calderwood is a Human Resources and Employment lawyer with over 17 years’ experience. After completing her law degree, Sarah attended Nottingham Law School where she was awarded a Distinction in the Legal Practice Course. Sarah contributes to articles including for the Executory News and MEN Business Week. Sarah is recognised as a recommended lawyer in the Legal 500 law directory.
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