22.04.2021

Covid-19 Vaccines and Returning to Work: The Key Issues

Loch Associates Group Employment Law Solicitor
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Covid-19 Vaccines and Returning to Work: The Key…

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Whilst the vaccine roll-out is currently being hailed as a great success for the UK, there is already a debate about whether employers can, or should, insist on employees being vaccinated. Having a full complement of vaccinated employees is likely to result in a dramatic reduction in the risk of the virus at work and less concern for employers when it comes to transmission in the workplace. This should also enable employers to bring employees back to work sooner and with more reassurance for the staff over their safety too. However, what happens if not every person you engage as an employee or a contractor wants to have the vaccine?

Can employers insist on vaccination?

At present, the government wants to persuade people that the vaccines are safe and that it’s in everyone’s interests to have it so that we can get back to some sort of normality. Acas has taken the view that “employers should support staff in getting the coronavirus (COVID-19) vaccine, but they cannot force staff to be vaccinated”.

However, an employer could be acting lawfully, depending on the circumstances, to take action if an employee is refusing to be vaccinated and the employer considers there are good reasons for vaccination. For example, in healthcare or care home settings, or where an employee’s role involves regular international travel and vaccinations become necessary for boarding planes or crossing borders.

Encourage or compel existing staff?

We anticipate that most employers will want to encourage the take up of the vaccine. This is partly due to the duty of care employers owe to protect the health and safety of their employees as a whole. However, compelling vaccines though brings with it a number of issues to consider:

  • Unlawful discrimination:
    • There are several reasons why an employee may refuse the vaccine which could be linked to a protected characteristic under the Equality Act 2010
      • Eg., religion or belief, disability, pregnancy, age
  • Breach of trust and confidence:
    • Applying undue pressure on employees to have the vaccine without reasonable justification could risk breaching this obligation and result in an employee resigning and claiming constructive unfair dismissal
  • Data Protection:
    • Information about employees’ health will be special category data under the GDPR so employers will need to consider their reason for insisting on/collecting data on vaccinations and be clear about what they intend to do with the data

Can employers lawfully dismiss an employee who unreasonably refuses to be vaccinated?

Potentially, yes, provided they can show that having the vaccine is a reasonable management request and is not unlawful discrimination. Employers should consider alternatives first – such as permanent homeworking or moving the employee to a role where they don’t come into contact with many people as well as considering the reasons why they have refused to have the vaccine.

Employers will also need to warn the employee and give them a final opportunity to comply, making them aware dismissal is a possibility before deciding to dismiss them.

Communicating with employees

Depending on the sector you operate in and bearing in mind the risks described above, the safest approach to vaccination is likely to be:

  • Communicating with staff about the importance of being vaccinated (both on an individual and collective level) and providing the latest vaccine health information
  • Expressing a strong preference that staff are vaccinated, and encourage them to have the vaccine, for example, by allowing them paid time off for the appointments and not counting vaccine related absence in absence records
  • Seeking to understand the reasons for refusing to have the vaccine to establish if any of the concerns can be alleviated

What about new starters?

Before a job offer is made it’s prohibited to ask the applicant questions about their health other than in circumstances permitted by Section 60 (6) of the Equality Act 2010. S60 sets out that it is only permissible to do that where it is necessary:

  • to establish whether an applicant will be able to undergo an assessment for the role
  • to establish if an applicant can carry out a function intrinsic to the role
  • to monitor diversity
  • to support positive action in respect of disabled people
  • for a disabled person to perform the role

Some employers such as Pimlico Plumbers are saying that they will make job offers conditional on proof of having been vaccinated. This is likely to be lawful as long as the employer does not discriminate against any disabled candidates who were unable to have the vaccine as a result of their disability or expectant mothers who were unable to have it as a result of their pregnancy.

Employers will also need to remember that younger people are not yet eligible to receive the vaccine and so any requirement for them to have the vaccine could be indirectly discriminatory on the grounds of age.

Will there be vaccine passports?

The UK has no history of requiring people to present certificates (aside from proof of age) in order to gain entry to public places or to access services.  However the government appears to be moving away from its initial stance that it would not be introducing vaccine passports by announcing a review of the proposal which will conclude by no later than 21 June 2021.  Watch this space.

How should employers deal with concerns about returning to work?

It’s important to remember vaccinating is supplementing, rather than replacing, an employer’s Covid-secure workplace – which should remain in place unless and until the government advises otherwise. We now know it’s likely we will need to plan for COVID-19 being an ongoing issue despite the vaccine.

Even employees who have been vaccinated may still not be comfortable with returning to their workplace, especially if others have not been vaccinated. Employers need to consider how to manage any ‘reluctant returners’, as well as how to manage a potentially mixed workforce of those vaccinated and those who have not been.

What to do next?

Consulting with employees should always be seen as a valuable opportunity. A discussion about the appetite for the vaccine is naturally linked to questions about returning to normality and future work patterns. What do employees like about “the new normal” that they want to keep?  Consider if you want employees to return to the workplace as before, or is this is a time to re-imagine office life, adjust working practices, and use of space as a result?

Think about doing the following too

  • Put in place an internal communications strategy and consider updating your policies to include your policy around infectious diseases, testing, and vaccinations
  • Maintain and keep under review the safety measures that are already in place
  • Consider what your approach will be to working practices to be put in place – rotating teams or staggered start and finish times
  • Facilitate employees being vaccinated and be prepared for time off due to side effects the day after
  • Keep up-to-date on developments on gov.uk

Conclusion

At present, we are some way off the vaccine being made available to all age groups in the working population, but the vaccination programme is progressing well and it is likely all employees will have been offered a vaccine by the end of July 2021 at the latest.  Businesses are starting to make plans for a return to the office so we recommend giving some serious consideration to what approach you might take to vaccination and returning to work, remembering that consultation and staff buy-in will be key.

Speak with one of our experts today. Contact us at https://lochassociates.co.uk/
  • Vaccination
  • covid 19
  • return to work

Sally joined Loch Associates Group in 2015 and has over 20 years' experience working in HR across both the public and private sector, operating at strategic and front-line levels. She is CIPD…

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