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Can you compel your staff to get fully vaccinated and return to work?

With organisations keen to have their workforce physically return and  some considering mandating vaccines, here we offer some guidance.

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Introduction

In July, all UK adults had been offered at least one dose of the Covid-19 vaccine and this month they will have been offered both doses. Many organisations are keen to have their workforce physically return with some considering mandating vaccines, particularly as this is becoming a more common approach in the US. However, UK employers should not blindly follow their US counterparts in relation to vaccine policies.

Mandating the vaccine

Care homes

From 11 November 2021 staff working in care homes will need to provide proof of COVID-19 vaccination or medical exemption or face possible dismissal. A union has warned that care homes could face ‘catastrophic shortages’ unless the government scraps its vaccination deadline for care home workers as they estimate that up to 70,000 of these workers will not be fully vaccinated by the deadline.

The operational guidance advises that employers should give staff that cannot comply with the requirement a reasonable opportunity to get vaccinated or obtain evidence of exemption before the employer decides to take formal action. In allowing such time, the employer should set out timescales and any steps that will be taken (e.g. disciplinary action, dismissal) if the employee does not comply. If a care home worker cannot provide proof of vaccination or exemption, the employer should consider alternative options, such as redeployment outside of the care home, to support the employee. The guidance further states that these new regulations may provide a fair reason for dismissal, though this might not be applicable if redeployment is possible.

Sectors other than care homes

Mandatory vaccinations are yet to be tested in an Employment Tribunal (ET). Employers should therefore proceed with caution, for the same reasons we have mentioned when discussing masks in the workplace. Indeed, introducing a mandatory vaccine policy is far more invasive than mandating face coverings and consequently creates a greater risk of discrimination or unfair dismissal. Currently, the government advice is that only those with serious allergic reactions should avoid the vaccine. However, some people with disabilities will need to consult with their specialist medical teams to decide on whether the vaccine is suitable for them. If an employee’s refusal is based on their disability, employers need to be careful to not treat that employee less favourably.

Employers will also need to consider employees’ objections if they are based on a religion or belief as this is protected under the EqA. Whilst the government guidance is that the vaccine is suitable for people of all faiths, it is more difficult to analyse whether someone who holds a belief opposing the vaccine will benefit from the protection in the EqA.

For a belief to qualify, it must meet the five Grainger criteria:

  1. The belief must be genuinely held.
  2. It must be a belief and not an opinion or viewpoint based on the present state of information.
  3. It must be a belief as to a weighty and substantial aspect of human life.
  4. It must attain a certain level of cogency, seriousness, cohesion, and importance.
  5. It must be worthy of respect in a democratic society, not incompatible with human dignity and not conflict with the fundamental rights of others.

An individual who rejects the jab due to their belief would have to overcome these tests, and crucially criterion 4. ‘Anti-vaxx’ beliefs based on conspiracy theories are unlikely to satisfy this test. However, it would be a difficult question for the ET to answer as to whether a cultural belief would meet the Grainger criteria. The British Medical Journal (BMJ) has noted that amongst some ethnic groups there is vaccine hesitancy due to trust in the government being eroded by systemic racism and discrimination. It would be open to employees to argue that they have a cultural belief, rooted in the racism and discrimination the BMJ refers to, that opposes the vaccine, and it remains to be seen if the ET would find in such an employee’s favour.

Under the Health and Safety at Work Act 1974, it is an employer’s duty to protect the health, safety, and welfare of their employees. This means that employers can strongly encourage their employees to take the vaccine. Indeed, Public Health England has released guidance for employers explaining the merits of having employees who are fully vaccinated and how to encourage employees to do so. This approach would be bolstered by a voluntary vaccine policy (stopping short of mandating) together with regular testing (which we previously discussed here).

Bringing those who are double jabbed back to the workplace

Since 19 July the government’s guidance no longer advises that employees should work from home. Instead, employers can bring employees back gradually. Consequently, employers are asking: can double jabbed employees be compelled to return? On one view the answer at present is ‘yes’ but, as always, a consultative and case by case approach is advisable because not everyone’s circumstances will be the same. For example, if an employee has a disability under the EqA, the employer will be under a duty to provide reasonable adjustments, including the right to continue working from home. Furthermore, employers should be alert to the government’s latest strategy setting out Covid Plans A & B for the winter, with Plan B anticipating people homeworking again if the infection and hospitalisation rates become unsustainable.

In the government’s guidance on NHS Test and Trace in the Workplace it states that employees are not required to inform employers if they have received a contact notification and advice from the NHS COVID-19 app. This could clash with the employer’s duty of care towards its workforce. As such, employers should create an environment where employees feel free to disclose such notifications. Alternatives can then be offered that seek to minimise risk (e.g., allowing that employee to work from home for up to 10 days or requiring a negative test).

Caution is critical

As most are keen to move past the pandemic, the desire to bring employees back is understandable but it would be prudent to keep in mind that this is a new area of law with key issues yet to be tested. The high-risk nature of the work in care homes is a useful litmus test to determine whether mandatory vaccination is viable and to what extent it could be applied elsewhere, so it will be interesting to see what happens in this sector over the coming weeks.

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Patrick Kilgallon

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patrick.kilgallon@collyerbristow.com



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