It’s the latest Covid conundrum for businesses…
The legality of ‘no jab, no job’ recruitment has hit the headlines recently.
But less attention has been paid to another issue… What can and cannot employers ask employees about their vaccination status?
Pre-employment
It’s not absolutely clear whether, during the recruitment process, asking about an individual’s vaccination status is in all cases unlawful.
However, it would be best practice to assume that, as with other medical questions, it is likely to be prohibited in most circumstances by section 60 of the Equality Act 2010.
Questions about health can only be asked in limited circumstances, such as where it is necessary to make reasonable adjustments for an interview or to assess whether the employee would be able to carry out a ‘function that is intrinsic to the work concerned’.
Those employers who have already spoken about implementing a ‘no jab, no job’ policy may be able to rely on one of the above-referenced exceptions if they can show that having the vaccine is essential to the work being carried out.
Employers may be able to justify this if it related to the potential employees working with vulnerable groups (for example, the care sector). In that case, asking about the vaccination status of a possible recruit would be essential.
However, such a policy would inevitably require flexibility as not all people can safely have the vaccine (eg. those who are immunocompromised).
The safest option for employers would therefore be to limit any questions about the vaccine during the recruitment process - unless it is absolutely essential to the role being applied for.
During employment
There does not appear to be any specific guidance from the government and/or ACAS on whether employers can ask existing employees about their vaccination status.
Anecdotally, some employers have already been asking employees about this as part of their workplace risk assessments. The answers to these questions are helping businesses establish whether the workplace can be considered ‘Covid-secure’.
As asking a question about vaccination status to existing employees is not specifically prohibited by law, it may be natural to assume that an employer can lawfully ask the question.
However, employers need to be mindful of the argument that asking the question to some or all staff could constitute a provision, criterion or practice (PCP) which disadvantages groups sharing certain protected characteristics and could, therefore, be indirectly discriminatory.
However, even if this was the case, an employer would potentially be able to justify such a policy as a proportionate means of achieving a Covid-secure workplace.
Data protection
The main issue concerns how the information is to be stored. Data relating to individuals’ health is a special category for the purposes of UK data protection laws. Therefore, the employer will need to show that they have a lawful basis to process the data.
The employer needs to ensure the information is kept confidential and only disclosed to those who need to see it, such as line managers or HR. Employers should not disclose the vaccination status of an employee to other members of staff who do not need to see it.
Summary
Employers should think about whether asking about an employee’s vaccination status is really necessary.
If an employer feels that their workplace is Covid-secure and they have already implemented effective policies aimed at combatting the health and safety risks posed by the pandemic, the argument for introducing a policy to ask employees about their vaccination status is likely to be quite weak.
On the other hand, if an employer genuinely and reasonably considers it important to the role, for example, if employees work with vulnerable people, such a policy would seem, on the face of it, proportionate and viable.
About the author: Paul Kelly is a Partner at Blacks Solicitors. Contact pkelly@lawblacks.com tel 0113 227 9249.
Image by Alexandra_Koch
