Much of 2020 and 2021 has seen employers in the UK having to review and change their working practices, implement home working, bring in working bubbles, introduce new working shift patterns, make the workplace COVID safe and furlough employees.
Whilst 2021 started with our third National Lockdown, the future looks much brighter, and we are all aware of the roadmap and that the UK testing and vaccination programme is well underway. This guidance looks at workplace COVID vaccinations and its relation to company policy, and the future of work-related travel.
As an employer, we hope you find the information useful.
Maybe. If your contract has a conditional clause for vaccinations due to work related risks, then the answer may be yes. This employment clause is only likely to be lawful should it already exist in your current contract of employment and there is a genuine business requirement such as a health and safety risk for your employees to be vaccinated.
If you do not have a contractual clause then insisting on vaccination will be much more difficult, and your best approach will be to reach mutual agreement together.
It is expected that most employees will welcome the opportunity to be vaccinated, but the 80/20 rule is likely to apply, with a percentage of your workforce not wanting to be vaccinated.
It is unlikely that you can force a person to be vaccinated. We recommend that in the event of refusal you try to reach mutual agreement. Forcing an employee, depending on the circumstances, may be classed as discrimination and legal action could be invoked against the Company.
The practice of good employee relations is that you should try to avoid enforcing change. We would recommend talking as a team or on an individual basis. It is about understanding that one size does not fit all and some of your employees will have genuine concerns or reasons for not wishing to be vaccinated.
There is no legal obligation for a Company to have a vaccine policy. Any policy you bring in should be carefully considered. You need to address why the policy is required, the content, why vaccinations are needed, what vaccinations you will require, how are you going to evidence the vaccinations, who will cover the cost of vaccination and what will happen if the employee does not wish to be vaccinated.
As the workplace reopens it is possible that not all employees will have been offered the vaccination before returning to the workplace. As with all things COVID, you must ensure you are following working practice and protocols as outlined by your professional accreditations and government departments, such as Public Health England (PHE) and the Health and Safety Executive (HSE). The Governments guides to operating safely in the working environment can be found at the link below:
There should be an overall risk assessment undertaken, along with individual employee risk assessments. Whilst the stay-at-home legislation has been rescinded from the end of March 2021, employers are still encouraged to operate home-based working where the risks of attending the workplace are too great.
Please refer to the first question.
This answer is maybe. You are strongly advised to take professional advice before any dismissal that is linked to vaccinations or the pandemic. One thing we can be certain of is over the coming months, is that there will be case law which will set precedents on vaccination and dismissals in the workplace.
To be able to operate a safe return to the workplace, you will need to undertake both a workplace and individual employee risk assessments. You will need to assess the risks to employees and visitors to implement reasonable adjustments and amendments to the workplace and working environment.
We would suggest consulting with your employees in advance of any return work programme so that any concerns can be raised and addressed.
Employees who feel they are being placed at risk by returning to the workplace could potentially allege that they are in “serious and imminent danger”, which is reportable to the Health and Safety Executive. Whilst we recommend that all concerns are discussed and addressed, any employee making this allegation may be protected against dismissal in the event that they refuse to return to the workplace.
If you have a genuine business need for vaccinations due to the work and services your Company undertakes, then you may be able to bring in a vaccination policy and programme. There must be a genuine business need rather than a blanket policy. We would suggest that you work with your employees to design a policy that works for all parties.
Refusal to employ people that cannot evidence having a vaccination may be considered to be discriminatory. No service or employment is required for employees to raise an employment tribunal in this circumstance.
If this clause already exists between you and your client or there is a genuine reason for requesting all employees are vaccinated, then employees should be made aware of the Company’s position. Offers of employment should identify that having a vaccination is conditional and refusal can result in the employment offer being withdrawn.
You will need to review which employees attend the site, where this request is required to be adhered to. It may be that you only need to have a limited number of employees supporting this client rather than insisting on the whole workforce being vaccinated.
If this is a new client condition and you have an existing employee that refuses to be vaccinated, then you will need to consider numerous factors, including if you will need to restructure and change who supports these clients.
Again, this is not an easy question to answer, and we suggest that you obtain professional advice before undertaking any action or conversations with your employees.