Helps employers understand the implications of staff and customer COVID-19 vaccination status.
This guidance is intended to help employers in Wales deal with the implications of COVID-19 vaccinations on their workforce, it is not legally binding. Employers should seek their own legal advice where necessary.
We have now offered a first COVID-19 vaccination to all eligible adults in Wales. This is a huge achievement. Employers have played an important role in encouraging staff to be vaccinated, working with trade unions and workplace representatives to achieve this. Employers have helped by promoting vaccinations and supporting paid time off work to attend vaccination appointments.
Despite the success of the vaccine programme, it is still important that workplaces remain COVID secure. This means continuing to comply with measures such as social distancing rules, thorough cleaning and good ventilation. Employers should take reasonable steps to minimise the risk of transmission and carry out risk assessments as necessary. Employers should continue to work closely with social partners to make sure any issues can be addressed at an early stage.
Employers should be aware that vaccination is not a mandatory requirement. Public trust in vaccination is very important and it is the view of the Welsh Government that people should not feel forced into vaccination. In most cases it would not be appropriate to treat non-vaccinated staff differently to vaccinated staff. Employers will need to comply with existing legislation to avoid discriminating against staff who are not vaccinated. This is particularly important as not everyone can be vaccinated or chooses to be vaccinated – for example children are not currently vaccinated, people with certain medical conditions are not vaccinated, pregnant women may chose not to be vaccinated and other groups may be less likely to be vaccinated.
The Welsh Government is issuing statements of vaccination to individuals who have had two doses of the vaccination and need to provide proof of vaccination for essential international travel. These should not be used for employment purposes such as job applications or assessing risk in the workplace. For more information see - Get the NHS COVID Pass to show your vaccination status for travel.
Summary of key points
- Within Wales there is no requirement for employers to ask staff, customers or service users to be vaccinated or to check on their vaccination status before letting them onto the premises or providing a service in the home or other setting. [footnote 1]
- Employers still need to maintain the existing COVID-19 health and safety measures in the workplace.
- Staff should not be pressurised into taking a vaccination, but employers can help by providing information and offering paid leave for vaccination appointments and sick leave due to side effects. It is in the interests of employers to support the health and well-being of their workforce.
- Employers need to be careful they do not unlawfully discriminate against staff who have not been vaccinated.
This guidance applies to employers in Wales only. This advice will be regularly reviewed as the public health situation changes.
The vaccination programme
A high level of take up of vaccination is absolutely critical. We know that the main variant of Covid now circulating in Wales is more transmissible than the original variant. This means we need to achieve exceptionally high levels of immunity in order to continue to reduce restrictions on people’s lives and to try to prevent or minimise further waves of the disease.
We have a COVID vaccination equity strategy for Wales to ensure that no-one is left behind and everyone in Wales has fair access to the vaccination. We know some groups need additional support to access vaccination. We are supporting the NHS in Wales to achieve this through tailored delivery and messages.
Making workplaces COVID secure
Since the outbreak of the pandemic employers have been taking crucial steps to make workplaces COVID secure for employees and service users. The vaccination programme doesn’t change the need to continue to take these measures. We understand that some businesses may feel pressure from customers to prove they are safe and these measures should help demonstrate that. Please check the Public Health Wales website for up to date information on this - Guidance on Keep Wales safe at work.
Understanding the current law
Employers need to understand their existing duties under current legislation and be careful to not unlawfully discriminate against staff or service users. Many of the people who are not vaccinated may fall into one of the categories of 'protected characteristics' under existing equalities legislation.
Some people cannot receive the vaccine on medical grounds, for example people who may be allergic to the vaccine. Pregnant women are advised on the benefits and risks of the vaccine before being vaccinated. Some people choose not to have the vaccine due to their personal beliefs.
In the UK, the Equality Act 2010 provides individuals who have “protected characteristics” with protection from discrimination. Vaccination status is not a protected characteristic under the legislation, however, bringing in a requirement for people to possess vaccine certificates to do certain things could still raise discrimination issues.
There are certain groups of people that will either not be able to receive the vaccine or may choose not to have it. These groups of people are in most cases likely to have one of the following protected characteristics so there is potentially a link between protected characteristics and the reason someone is not vaccinated:
- age (young people will generally be the last to receive the vaccine)
- disability (people with certain medical conditions are not advised to receive the vaccine)
- pregnancy/maternity (pregnant women are advised on the benefits and risks before being vaccinated)
- sex (linked to pregnancy above)
- religion/ belief
Types of discriminatory behaviour
Direct discrimination (section 13 of the Equality Act) occurs when a person discriminates against another if, because of a protected characteristic, they treat that person less favourably than they would treat others. If an employer, for example, were to prevent an employee from working because they have not received a vaccine, this could amount to direct discrimination if the employee has a protected characteristic.
Indirect discrimination (section 19 of the Equality Act) occurs where a person, applies to another person, a 'provision, criterion or practice' (PCP) which is discriminatory in relation to a relevant [footnote 2] protected characteristic of that other person. A requirement to have been vaccinated in order to work could potentially indirectly discriminate against persons who have one or more of the above protected characteristics, as although such a policy would not be intended to treat anyone less favourably, it may in practice have the effect of putting those individuals at a particular disadvantage compared with others who don’t share that protected characteristic. For example, in an employment context, at the present time a young employee may not have been fully vaccinated and therefore a requirement by an employer to be vaccinated in order to work will place this employee at a particular disadvantage as compared with employees who are older.
However the law does allow for a potentially discriminatory PCP to be justified if the employer can establish that it was a proportionate means of achieving a legitimate aim. In the case of a requirement to be vaccinated in order to work an employer could argue their legitimate aim as being the desire to protect the health of staff, customers, third parties etc. The employer would then have to assess whether mandatory vaccination is a proportionate means of achieving that aim. That assessment would need to consider what measures were in place at the time (such as COVID-secure type adjustments to working practices) and whether those measures were sufficient to achieve that legitimate aim in a less discriminatory way.
In cases where it is possible to make it COVID secure through other means for example through social distancing, cleaning, and use of personal protective equipment it is less likely to be reasonable to make vaccination mandatory for staff. Employers considering mandatory vaccination should take independent legal advice.
It should be noted that there is also risk of two-tier workforces being established between the unvaccinated and the vaccinated. There is risk of potential for harassment against those with protected characteristics who have not been vaccinated by those who have been vaccinated if as a consequence there is unequal division of work for example.
It is important that the vaccine is voluntary as this helps support public confidence in the vaccine programme. Employers should make every effort to encourage their staff to be vaccinated through constructive means. One important way employers can help is by offering paid leave for vaccination appointments and associated sick leave if there are side effects. They should listen to concerns from their staff and try to address those issues. They could provide evidence of the safety and efficacy of the vaccinations. They should work with Trade Unions or workplace representatives to address these issues.
Employers should be carefully assessing whether any steps that they propose to take in connection with the vaccine status of their workforce present any potential discrimination issues and if necessary take independent legal advice.
Health and Safety
All employers have a duty to take reasonable care for the health and safety of their workforce implied into the contract of employment. There is also a statutory duty under the Health and Safety at Work Act 1974. All the COVID-secure measures that employers have been putting in place since the start of the pandemic have assisted in creating a safe place of work. These measures should not be disregarded now the vaccine programme is underway.
One of the ways in which employers could further comply with their duty would be to inform staff on the advantages of the vaccine and give reasonable paid time off to attend a vaccination appointment.
Employment terms and conditions
There may be a small number of working environments where employers are concerned that unless all staff are vaccinated they may not be able to ensure the safety of colleagues and service users. Even in such cases it is preferable for employers to try to persuade employees of the benefits of vaccination through open discussion and/ or put in place other safety measures rather than mandating vaccination.
Introducing a policy that employees must be vaccinated may involve making changes to the terms and conditions of employment. Making such changes requires consultation with Trade Unions and/or the workforce with a view to reaching agreement. During consultation issues of the potential discriminatory effect are likely to be raised.
It is important that non-vaccinated staff are not treated less favourably than vaccinated staff. If some staff are not vaccinated and it is not possible to put in place sufficient alternative safety measures employers should consider reasonable adjustments for those staff. For example this could mean offering regular testing for unvaccinated staff or offering an alternative role at the same grade or level where there is less risk of transmitting the virus. Any such measures should be regularly reviewed. As more of the population is vaccinated we hope the prevalence of the virus will decrease and therefore the risk of transmission should also decrease within the working environment.
On 14 April the UK Government launched a Consultation on amending English regulations to make COVID-19 Vaccination mandatory for social care staff working in care homes for the elderly in England.
On 16 June the UK Government confirmed that in care homes in England vaccination will be mandatory for staff. The Welsh Government is not consulting on this in relation to Wales. The Social Care Working Group of SAGE has advised that an uptake rate of 80% in staff and 90% in residents in each individual care home setting would be needed to provide a minimum level of protection against outbreaks of COVID-19. Vaccination rates in care homes are above these levels in Wales at the present time. We continue to encourage workers in care homes to take up the vaccination and we will keep the situation under review.
Can I ask my staff or job applicants about their vaccination status?
Under section 60 of the Equality Act, the general position is that it is unlawful for an employer to ask questions relating to a candidate’s health during a work application process. Therefore, asking for proof of vaccination at this stage could be unlawful. There are limited exceptions, for example where such a question relates to a candidates ability to carry out a function that is essential to the job, but employers should take independent legal advice on their particular circumstances to avoid the risk of legal challenge.
For existing employees, if an employer asked an employee about their vaccination status, this information would be classified as special category data under the both the UK General Data Protection Regulation, which applies to processing domestic personal data, and the Data Protection Act 2018. This means that the information would only be processed by the employer after a data protection impact assessment (DPIA) has been carried out. A DPIA would need to consider why the information about an employee’s vaccination status is needed. Undertaking a risk assessment which puts in place measures to ensure the health and safety and COVID secureness of a workplace means that it’s likely that most employers are likely to have a legitimate reason to collect such data in the short term. However, the information should be limited and should not be retained for longer than necessary. The employee should also be informed why the employer is asking about their vaccination status, how they are going to store that information and for how long. The situation should also be kept under review.
1. Rules for international travel are not covered in this guidance. Individuals should check FCO advice before travelling.
2. Pregnancy and maternity is not a relevant protected characteristic for the purpose of section 19 of the Equality Act 2010.