Covid-19: Step 4 update for employers

The first issue is to ask what specific information the business wants to collect and why it thinks it needs it - because data protection considerations are relevant here.

The next issue is whether any "survey" will be anonymous. Collecting anonymised data to determine how many employees have been vaccinated carries little legal risk, since the data is not considered "personal data" under the data protection legislation.

Collecting non-anonymised vaccine status data will mean that the data protection legislation will come into play as vaccine status will amount to "special category data", affording it the highest protection for which an organisation will need to show that the processing is necessary for employment obligations. This requires an appropriate policy document in place, as well as maintaining a record of processing activities by conducting a data protection impact assessment (DPIA).

Before collecting the data, the employer would need to ensure that it has a lawful basis for processing - effective planning for a reopening of an office combined with health and safety concerns for its staff might well amount to a good reason for collecting information on which staff have had the vaccine. Employers choosing to go down this route must be transparent with staff, ensuring that they understand why this information is being collected and what it will be used for. They will also need to balance their interests against those of the individual. This requires an assessment of whether the same result can be achieved in another less intrusive way. For example, (i) could office based Covid-19 testing be adopted rather than requiring employees to disclose their vaccination status? (ii) will the disclosure of vaccination status be voluntary? (iii) will there be any repercussions for employees who do not disclose their vaccine status? Employers should consider these questions as part of the DPIA.

More detail on the ICO's position on this kind of data collection exercise can be found on their data protection and coronavirus hub.

Interestingly, the Government has announced its intention to use legislation to require all those working in the care home sector to be vaccinated, a step endorsed by the Equality and Human Rights Commission.

Notwithstanding the Government's decision not to make Covid-certification mandatory (as discussed above), it seems relatively clear that the direction of travel on vaccination is moving towards ever-greater take-up across all sectors of the population, and growing acceptance that showing that you have been vaccinated is a reasonable measure in order to gain admittance to large-scale events and gatherings. Given that context, employers might find that the level of resistance to a "vaccination survey" is manageable although it is also fair to say that so far the majority of our clients are not going down this route. This might change as the return to work plans settle over the summer.

Dividing the employee population into two cohorts depending on vaccine status might appear a sensible approach. Risk may arise, however, if the two cohorts can be divided along any of the protected characteristics. The most obvious is age: because the vaccine roll-out is largely dependent on age, the vaccinated RTO cohort is likely to be older and the unvaccinated WFH cohort is likely to be younger. An employee in either group who objects to the rule imposed on them may therefore be able to mount a discrimination law challenge. The firm's defence will then depend on the reason - the "objectively justifiable legitimate aim" - for its stance.

Discrimination also comes into play when considering the reasons why employees might not have been vaccinated. If that reason is connected to a "protected characteristic", in the language of the Equality Act 2010, any employer seeking to force vaccination would need to show its decision was objectively justified. One can imagine a number of protected characteristics that might be relevant in this context, such as being pregnant.

More interesting is the protected characteristic of religion or belief. Some employees may have religious objections to vaccination. Some may subscribe to an "anti vaxxer" viewpoint, or object to any drug containing animal extracts, or that has been tested on animals. Depending on the coherence of that viewpoint, the reasons for it, and its effect on the individual's life more widely, it is possible that it might amount to a philosophical belief qualifying for protection in the same way as a belief founded on religion.

When assessing whether a belief qualifies for protection, the Tribunals apply five threshold tests: (i) the belief must be genuinely held; (ii) it must be a belief and not an opinion or viewpoint; (iii) it must be a belief as to a weighty and substantial aspect of human life and behaviour; (iv) it must attain a certain level of cogency, seriousness, cohesion and importance; and (v) it must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

In a recent, well-publicised decision, the Employment Appeal Tribunal considered whether so-called "gender-critical" views were protected. Those views hold, amongst other things, that sex is immutable, transwomen can never be the same as natal women, spaces should be reserved for natal women, and natal pronouns should be used - a practice often called "mis-gendering". The focus in this case was the final criterion - item (v) in the list above. Adopting the approach of the European Court of Human Rights, the EAT concluded that only the most offensive forms of hate speech (e.g. Nazism or totalitarianism) should fail this part of the test. "Gender-critical" views, while offensive to some, are not at that extreme end of the spectrum. They are therefore protected in principle. The EAT was at pains to stress, however, that just because a belief qualifies for protection, that does not give adherents of that belief carte blanche to offend colleagues, harass them or discriminate against them. Such behaviours would give rise to liability, whatever the belief system motivating them.

Applying that logic to "anti vaxxer" views, it is relatively easy to imagine a claimant satisfying all five of the threshold tests. The real question in any litigation will be whether the detrimental treatment - being required to WFH, or being disciplined, or being dismissed etc - which is likely imposed because of a refusal to be vaccinated rather than the anti vaxxer viewpoint per se, is objectively justified.

Again, there might be an age discrimination angle to deal with, but an objective justification ought to be relatively easy to formulate. The key issue is going to be what employers will do if the policy is breached: if those employees are required to work from home, it will be important to ensure parity between the WFH and RTO populations. That can be difficult in terms of promotion and reward, where those in the office are often preferentially treated.

Trickier issues arise if some sort of sanction is to be imposed for breach of the policy. Discrimination concepts would come into play (as discussed above), but firms would also need to have in mind the additional protection offered by ss.44 and 100 of the Employment Rights Act 1996. Those sections permit a claim where an employee is detrimentally treated, or dismissed, because they have refused to attend the workplace "in circumstances of danger which they reasonably believe to be serious and imminent".

A number of precisely this type of claim have been reported over the last few weeks arising from the first lockdown in Q2 2020. They are inevitably fact-specific, but offer some useful points to note:

• employees whose roles cannot sensibly be performed remotely will find it harder to remain at home;
• insisting on being furloughed is unlikely to endear claimants to the Tribunal;
• taking sensible steps to facilitate remote working, and keeping one's employer informed, will assist claimants; and
• claimants who are fearful about attending work because of caring responsibilities for vulnerable family members are likely to receive a more generous hearing.

Given the evident risk in this area, clients contemplating adopting a stricter approach should seek advice at an early stage.

Mandating vaccination for employees has not been tested in UK law yet. The key problem with mandating the vaccine will be the risks associated with dismissing employees who refuse, and the potential for discrimination claims from employees with protected characteristics. It will be harder to dismiss an employee fairly where they can continue to perform their job without needing the vaccine. In contrast, if employees are required to travel to locations where the vaccine is needed for entry into that country, then the requirement to be vaccinated is more likely to be a fair reason to dismiss an employee who refuses.

At the moment, as there is no legal obligation for office workers to be vaccinated or to disclose their vaccine status to their employers it would be risky to implement a policy requiring staff to be vaccinated. This might shift once the vaccine has been available to the entire adult population for a significant period of time.

Public Health England has launched a campaign to assist employers to encourage their staff to be vaccinated. A toolkit, including posters and briefing notes, is available online. One of the key aims of the campaign is to ensure employees have reliable information about the UK's vaccination programme, given the level of inaccuracy circulating on social media.

It is reasonably likely, if you introduce a RTO policy, that some employees may request flexible/agile work arrangements (i.e. working from home/WFH). Most clients will have a flexible working policy which confirms the procedure for making a formal WFH application. As a very brief reminder, flexible working requests are governed by statute in the UK. It is open to an employer to reject an application for flexible working for any of the following business reasons: (i) extra costs that will damage the business; (ii) the work cannot be reorganised among other staff; (iii) people cannot be recruited to do the work; (iv) flexible working will affect quality and performance; (v) the business will not be able to meet customer demand; (vi) a lack of work to do during the proposed working times; and (vii) the business is planning changes to the workforce.

Some clients will prefer less formal agile working arrangements that offer flexibility. In all cases, firms should consider some of the practical aspects of flexibility.

• How much freedom is available? Should departments or teams be required to attend on particular days?
• How will learning and development be maintained?
• How will promotion and reward be dealt with, given the perception that those in the office are often preferentially treated?
• How will confidentiality and document management be addressed?

• How will meetings be managed if some participants are remote and some are in the office together?