‘Ask the lawyer’ with DWF
In our new monthly Ask the Lawyer feature with DWF, we bring you the answers to some of your questions in relation to business, employment, investment, tax and other legal aspects of running a business.
We asked our members for questions relating to employment issues recently and put these to DWF Employment Partner, Ann Frances Cooney.
What can we do to encourage vaccination and reduce the likelihood of our employees having to self-isolate?
With the relaxation of the isolation rules for individuals who are fully vaccinated, employers have an additional incentive to encourage vaccination within the workforce. The government has actively encouraged employers to promote the vaccination programme. Organisations are considered vital in the fight against Covid by reducing workplace risk through vaccination. Guidance issued by the government states that employers can encourage vaccine take up by supporting staff to get the vaccine and by offering paid time off to attend the appointment. Employers are also urged to share the benefits of being vaccinated with employees.
Employers should communicate clearly with their workforce to ensure policies and procedures with regard to vaccination are clearly set out. Any vaccination policy should set out the purpose and benefits of vaccination, the data protection considerations and what pay (if any) the employee will receive during a vaccination appointment. Employers should also consider their approach to asking their workforce about their vaccination status and communications should be clear and transparent. As always, employers should ensure policies and procedures are applied in a non-discriminatory way.
There is still a risk of employees having to self-isolate if they either contract Covid-19 or if they are a close contract of someone who tests positive and they are unvaccinated. Employers can reduce the risk of exposure at the workplace by following measures such as increased sanitising and good ventilation.
Employers should also comply with the government face coverings guidance and consider what social distancing measures can be continued to reduce to the risk of a workplace outbreak.
Can employers in the tourism sector insist an employee is vaccinated? What if the employee refuses?
Insisting an employee or worker is vaccinated is not a straightforward question. The UK government has not legislated to make the vaccine compulsory across the board (with the exception of certain care home workers). The element of choice in deciding whether to have a vaccine presents employers with difficulties. Employers looking for effective Covid-19 control measures for their business will undoubtedly be keen for their workforce to be vaccinated as soon as possible, particularly in the tourism sector which relies heavily on social interaction and mixing. Employers cannot physically force an employee to take the vaccine. However, employers can strongly encourage employees to be vaccinated. It is important for employers to note that taking disciplinary action or even dismissing an employee for failing to be vaccinated is not without risk.
Unfortunately, a one size fits all approach will not be appropriate. The vaccine will not be suitable for all and some employees will have perfectly legitimate reasons for refusing vaccination. Employers will need to take into account the different protected characteristics of their employees when considering their approach to vaccination. The vaccine has been rolled out in age order and so any contractual provision or policy which disadvantages younger workers may be indirectly discriminatory, employees with certain disabilities may not be suitable for the vaccine and employees may object to being vaccinated on the grounds of their religious or philosophical belief.
Vaccination on this scale is an entirely new and sensitive issue. We have yet to see how courts and tribunals will deal with unfair dismissal and discrimination cases in this context. Employers need to tread very carefully before disciplining or dismissing an employee for refusing to be vaccinated. A variety of factors will need to be taken into account, with each case being considered on its own facts, including:
- whether the vaccination requirement is a reasonable management request;
- health and safety requirements (including any risk assessments carried out);
- possible discrimination issues;
- the employee’s reasons for refusal; and
- the implications for the employer of their refusal.
Alternatives to vaccination will need to be factored in, for example: other social distancing measures, homeworking or different job roles in order to mitigate risk.
Ann Frances Cooney | Partner | DWF (dwfgroup.com)
Watch out for next month’s Ask the Lawyer feature on the corporate aspects of running a business, notably in trickier, more fragile and less predictable times but also considering the appetite for renewed growth and investment as the world continues to try to unlock and get “back to normal”.
