An employment lawyer has told Health & Protection that concerns around breaching employment law or data protection rules could be behind employer reluctance to follow Acas guidance on supporting employees to get a Covid vaccination.
Acas advice is that employers should support staff to get a Covid vaccine once it is offered to them. This support could include ensuring employees have paid time off for vaccine reasons.
Acas commissioned YouGov who polled 2,030 senior decision makers around the UK to ask whether they would be giving staff paid time for Covid vaccination appointments.
The poll found that while 59% had done so, 4% said no, but planned to implement this in the near future, 25% said they had not been doing this and did not plan to, and 12% said they did not know.
When asked if they were paying staff full company sick pay if they are off sick with Covid vaccine side effects the results were similar.
Half (50%) said yes, a quarter (26%) said no and did not plan to, 6% had not but planned to implement this in the near future, and 18% said they did not know.
Discrimination cases
Commenting on the findings, Jacqueline McDermott, partner at law firm Keystone Law, told Health & Protection that employers faced a number of difficulties regarding the vaccination status of their employees.
McDermott said employers could face a number of legal issues and complaints if they required staff to have the vaccine in order to be able to attend work.
This could include disability and pregnancy discrimination cases from people who cannot have the vaccine for health reasons and even age discrimination cases from younger workers who have not yet been offered it.
Data protection issues
But there are also data protection issues.
“Details of an employee’s health record is special category data and the employer would need to show that they have a special category lawful basis to record or process data,” McDermott explained.
“They would need to be able to show that it is necessary for the purpose of complying with its obligations under employment law, for example providing a safe working environment, which may not be easy for many employers other than those in health or caring sectors.
“Alternatively, they could argue that the processing is necessary to assess the working capacity of the employee. However, in most employment situations being vaccinated or not is unlikely to affect their ability to undertake their job.
“Given the employment law and data protection issues, it is not surprising that some employers have chosen not to follow the Acas advice.”
