Can Employers Require Employees To Produce Their NHS COVID Pass Before Allowing Them To Return To The Workplace?

The NHS COVID Pass can be used to prove coronavirus vaccination status and/or test results for those travelling overseas or attending events and venues in England. The COVID Pass is available in digital and paper forms and will show whether the holder has been fully vaccinated or recovered from a recent Covid-19 infection (and for domestic events, their lateral flow or PCR test results).

So far, the Government has only advised certain industries in England to use the NHS COVID Pass in respect of their customers or visitors, who are likely to be in close contact with a large number of other people from outside their household and for a sustained amount of time, such as:

  • Crowded, unstructured indoor settings such as nightclubs and music venues.
  • Large unstructured outdoor events such as business events and festivals.
  • Very large structured events such as business events, music and spectator sports events.

Can an employer use an NHS COVID Pass to verify the status of their employees?

Unhelpfully, the guidance does not rule in nor rule out the use of the COVID Pass by employers.

Current Government guidance on reopening workplaces does recommend that employers check their employees’ vaccination status and for those staff that are not fully vaccinated, employers should require regular lateral flow tests to be taken or confirmation of recovery from a recent Covid-19 infection. Checking the COVID Pass might be an easy way for an employer to comply with these requirements.

At Nelsons, we recommend that any employer considering asking employees to provide their COVID pass should have a clear view as to what they are attempting to achieve by doing this. Examples could include:

  • Where a business’ commercial premises are gradually being reopened and employees are returning to the workplace. In this instance, workers could show their COVID Pass when they arrive at work. Alternatively, if they do not have a valid COVID Pass for a specific day then they would be required to work from home if they can.
  • The COVID Pass could be used as an additional safety precaution where staff members work with one another for a long period of time and are near one another and/or customers.
  • Finally, in circumstances where a business has chosen to rollout lateral flow testing for employees but has decided that those who are fully vaccinated are exempt from having to carry out repeat tests.

Businesses need to be aware that the NHS COVID Pass is designed for use in England only and other areas of the UK have alternative arrangements.

ICO data protection guidance on using the NHS COVID Pass

The ICO has published guidance to businesses on how they should use the NHS COVID Pass to check the status of their employees, customers and visitors.

From a data protection perspective, the ICO specifies that a person’s COVID status is deemed special category data, so the use of it must be “fair, relevant and necessary for a specific purpose”. It cannot be used on a ‘just in case’ basis, or if a business can achieve its ultimate objective without collating this data.

The industry within which a business operates and/or the services it provides, and the associated health and safety risks in the organisation’s setting, will be relevant to consider if there are compelling reasons to check an individual’s COVID status.

Businesses may need to undertake a data protection impact assessment if the use of this data could result in a high risk to individuals (e.g. them being denied employment opportunities or services).

Discrimination claims

Employers who decide to check the vaccination status of their employees (using the COVID Pass or otherwise) will need to be mindful to not indirectly discriminate against any of their staff members who have characteristics that are protected under the Equality Act 2010.

For example:

  • Those who are unable to have a vaccine for medical reasons or aren’t prepared to due to personal belief reasons – these employees will have to carry out regular lateral flow tests (unless they have in the past had a positive PCR test, which means they have obtained the NHS COVID Pass via assumed immunity) and consequently may feel that they are at a disadvantage and could potentially bring a claim for indirect discrimination. Employers will need to consider whether they can justify this approach as a proportionate method of achieving a legitimate aim.
  • Staff members too young to be fully vaccinated – such workers may argue that they are disadvantaged as they have not been eligible to receive their vaccine doses until later.  This is becoming less and less of an issue as the vaccine is available to those aged 16 and above. Again, employers will need to consider whether they can justify this approach.


Checking vaccination status is a contentious issue and employers need to tread carefully in deciding what their approach to this is going to be, weighing up the health and safety, confidentiality and data protection concerns.

We would advise employers to communicate their policies on this and to apply them consistently to avoid confusion or allegations of unfairness.

COVID Pass EmployeesHow Nelsons can help

Laura Kearsley is a Partner in our expert Employment Law team.

If you would like any advice concerning the subjects discussed in this article, please contact Laura or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online enquiry form.

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