Vaccine Q&A for schools

Whilst calls for front-line teaching staff to be given vaccine priority were ultimately ignored, more and more school workers are being invited to book a vaccination appointment each passing week.

We take a look at the key questions facing school leaders below.

Do we need to force school staff to be vaccinated?

In short, no. Your main obligation under the Health and Safety at Work Act 1974 is to ensure the health, safety and welfare at work of all employees as far as reasonably practicable. This includes conducting suitable risk assessments to identify hazards and control risks – no doubt all schools will be familiar with these obligations in light of the ever-changing guidance from Public Health England and the Department for Education over the past year or so.

However, whether to be vaccinated is ultimately a personal choice, and the general consensus is that health and safety obligations do not extend to requiring schools to prevent staff from coming to work unless they have been vaccinated. This is before considering the sizeable employment law risks from seeking to implement such a rule, particularly in relation to any potential dismissals.

Do we need to keep a record of which staff have been vaccinated?

No. There are also data protection considerations here – health data will generally constitute ‘special category personal data’ under the GDPR, meaning that schools can only collect and process this type of personal data if certain additional conditions are met.

Can we give staff a reasonable management instruction to be vaccinated?

The answer here is likely to be yes, provided that they do not have a reasonable excuse for not getting the vaccine (such as pregnancy, religious reasons or if they have been advised not to receive it for health reasons). Even the National Education Union accepts that an employee could potentially be liable to disciplinary action in these circumstances.

However, it does not automatically follow that it would be reasonable to dismiss an employee who ignores such an instruction. Even if there are no discrimination issues arising (for example in relation to the protected characteristics under the Equality Act 2010 mentioned above), dismissal will not necessarily fall into the band of reasonable responses from an unfair dismissal perspective. Whilst a Tribunal would take into account many factors, it is significant that neither the NHS nor the wider care sector seem to be taking this level of robust approach to ensuring that its workforce are vaccinated.

If you do not propose to take any formal action if an employee refuses an instruction to be vaccinated, you should consider carefully whether it is worth placing yourself on a potential ‘collision course’ with staff by issuing a formal instruction. It may also set an unwanted precedent if an employee is not disciplined for unreasonably ignoring a clear and reasonable management instruction. You may consider whether it would be more productive to take an approach centred around setting expectations, encouragement and education instead – see below for ideas.

Can we implement a ‘no-jab, no-job’ policy for vacancies?

The Government has taken a firm stance towards discouraging employers from introducing such a policy. Whilst the risk of unfair dismissal claims wouldn’t apply to prospective job applicants, any risks around discrimination would apply in much the same way as for existing employees.

Our experience is that such a policy would be generally out of step with the wider schools sector.

Are we legally required to do anything at all about staff vaccinations?

This article looks to address the questions which we are frequently beginning to hear from schools. However, there is no general legal obligation on employers to require or even encourage their staff to be vaccinated, and many schools will undoubtedly take the view that there is already one of the biggest national publicity campaigns in history in place for this purpose.

What positive steps can we consider taking to encourage vaccine take-up amongst our staff?

There are a number of initiatives which schools can consider:

• Setting expectations: There is no issue with schools writing to all staff to underline that they expect all employees to book a vaccination appointment when able, unless they have a good reason for not doing so. This may feel like a more comfortable balance between promoting vaccination without inviting potentially significant conflict than issuing a formal management instruction.
• Education: There is a range of material available from Public Health England and similar sources, promoting the benefits of being vaccinated and, in some cases, addressing some of the more common myths around the COVID-19 vaccine. Schools may consider drawing staff attention to appropriate information sources and/or making them available in staff-only areas at school.
• Time off for vaccination: We all know the difficulties caused by short-term absences for classroom-based staff in particular. Unless an employee is not fit for work, you may well generally expect any medical appointments to be arranged outside of school hours. However, taking a more flexible approach to the COVID-19 vaccination may well be worth considering from a number of perspectives.

For further information, please get in touch.