Now that the pandemic is (at least in the UK) under control, the issue of vaccine passports (or certificates) has become hotly debated.

Initial plans to introduce mandatory vaccine passports for access to nightclubs and other big indoor venues in England have just been dropped, but plans could be resurrected if case numbers rise. Care home staff are now legally required to have both vaccines unless medically exempt.

What about law firms and other professional services firms who want their staff to return to the office? According to a British Chambers of Commerce (BCC) survey, nearly a third of big UK firms were considering vaccine passports for staff. However, the majority of smaller firms were not planning to.

Firms with more than 50 staff were more likely than smaller firms to have implemented or were considering introducing requirements for proof of vaccination; even so, nearly 69% had no plans to do so. Interestingly, the BCC survey also revealed that nearly 30% indicated that they would implement regular testing – an option that an increasing number of firms are likely to choose instead of vaccine certificates.

But if case numbers rise considerably as we move into autumn and winter and tighter restrictions are imposed by government, how might firms respond?

Businesses are at liberty to require their staff to have had both vaccines before returning to the office, however this could have implications. Careful consideration should therefore be given to whether that is a reasonable response at the stage at which the UK is during the pandemic at the time.

Legal and ethical considerations

Apart from the administrative process involved if a business decides to mandate vaccine passports, there will undoubtedly be legal and ethical considerations for firms. There are many individuals who, because of their personal beliefs and convictions, refuse to have the covid vaccine and fear disciplinary action and losing their job.

Suppose, for example, an employee is in the early stages of pregnancy and does not want to disclose she is pregnant for some weeks – but has not had the opportunity to have the vaccine. Or an employee who is medically exempt from having the vaccine, or who has a genuine fear of needles? These staff members may not want to discuss those issues with their employer.

Employers who choose to mandate vaccine certificates could face legal action, a risk which many will not want to take. Firms could face discrimination claims on the basis of age, disability, religion or pregnancy.

On the other hand, employers have a raft of health and safety obligations to comply with. For instance, covid-19 is a reportable disease under RIDDOR. Would introducing vaccine passports amount to a reasonable step to reduce a workplace risk (of a covid-19 outbreak) under the Health and Safety at Work Act 1974, depending on the outcome of a risk assessment?

A key factor in a legal claim would likely be whether mandating vaccine passports is a proportionate means of achieving a legitimate aim. In the absence of case law on this point, we do not know how the courts might approach such a case. And as the CIPD points out, “being a test case as one of the first employers to dismiss on the grounds of vaccine refusal is likely to be time consuming and potentially expensive”.

At the very least, firms should communicate and consult with their employees before introducing such a policy that has potentially serious ramifications for staff.