Plan Insurance Blog

Does No Jab Mean No Job?

How you choose to manage your workforce during the Covid-19 vaccine rollout could affect whether people feel comfortable in your business. In this blog we tackle some important issues that employers are being forced to confront. For example can a business insist on mandatory vaccines before staff can return to work?

Recent evidence points to the Indian variant of Covid-19 proving to be particularly prevalent in areas of the UK with lower vaccination rates. Questions regarding unvaccinated employees returning to work likely to persist in the coming weeks and months.

A new survey of 5,000 Brits by HR specialists Peninsula regarding attitudes towards COVID vaccines in the workplace generated some interesting insights. The survey found that:

  • 50% expect their bosses to demand a vaccine passport before they can return to the workplace.
  • A fifth would fear for their health if employers don’t make COVID-19 vaccines mandatory for staff.
  • A third think it would be reckless of their employer NOT to introduce a policy on vaccinations.
  • And just 17% have had a conversation about their companies’ policy on vaccines.

Will the vaccine become mandatory in the UK, or perhaps across certain sectors?

As it stands, the government has not legislated for the vaccine to become mandatory for anyone; however on 14th April a consultation was opened on whether to make the vaccination a requirement for those working in elderly care homes. That consultation proposes that an amendment is made to existing legislation to require care home providers to only use staff who have received the vaccine, or those who have a legitimate medical exemption.

There have also been some reports recently that some London NHS Trusts are preparing to make vaccination compulsory for workers, so there are likely to be some further developments on this front.

There has also been ongoing speculation about Covid vaccine passports – the government is carrying out a review into whether they could play a role in reopening the economy, reducing restrictions on social contact and improving safety. This review is going to assess a number of things, including the potential use of vaccine passports to enable access to various settings (that could include workplaces as well). The government is due to set out its conclusions in advance of step 4 of the roadmap (which is due to start no earlier than 21st June).

Local lockdowns are returning as a possibility following seemingly confinable outbreaks of the Indian variant. The vaccination process has been accelerated in areas such as Bolton were the new strain is surging. Getting jabs in more peoples’ arms is the Government’s preferred counter action but it appears unlikely the vaccine would be made mandatory. Though it does appear to correlate that communities where non-participation rates for the vaccination program remain higher are experiencing higher than average cases of the new variant. Reassuringly for those have had the jab, as things stand Health Minister Matt Hancock has stated that a very high proportion of those hospitalised with the Indian variant have not been vaccinated.

Can an employer require its employees to be vaccinated against Covid-19?

New Starters

Employers can decide to insert a clause into their employment contract requiring new starters to have the vaccine; however, that will have consequences as there may be various groups of potential applicants who might not be able to meet that requirement, for example:

  • Those with autoimmune conditions.
  • Pregnant women.
  • Those with allergies to any of the ingredients of the vaccine.
  • Those who oppose vaccines on the grounds of their beliefs, e.g. vegans, anti-vaccination in general.

So, in short, where that reason relates to a protected characteristic under the equality act, e.g pregnancy or disability, or religious or philosophical beliefs – that may give rise to claims of discrimination. Employers need to weigh up the risk of those claims and the associated costs to your business – both financial and reputational – with the advantages that all new starters being vaccinated will bring.

Existing Staff

In respect of existing staff and employers requesting them to be vaccinated, it will generally depend on their existing contractual terms and whether it is considered a reasonable management instruction to require them to be vaccinated. As above, similar groups of people are likely to be affected by such a requirement which can give rise to potential discrimination claims but also, for existing employees with those up to two years’ service, that could lead to potential constructive dismissal claims as well.

There would usually be a change required to existing contracts of employment and that generally requires a period of consultation to be followed, as well as agreement to be reached with impacted employees. In some situations, employers may seek to impose such a change unilaterally but this must be done with caution as such action usually attracts a significant level of risk. Rather than making this a contractual issue, many employers are amending their policies to strongly encourage employees to have the vaccine instead and will still need to consider what steps to take for those that don’t – which could, in exceptional circumstances, lead to dismissal.

If you have any employees that do not wish to, or refuse to, be vaccinated then having a blanket policy to dismiss all those who will not will almost certainly lead to successful unfair dismissal claims and potentially the huge financial and reputational consequences of those. However, if you deal with each case on an individual basis instead, in some cases a fair dismissal for not having the vaccine may be possible. It is vital to ensure that you have a very strong and objectively valid reason for requiring the employee to have that vaccine. You also need to consider the situation carefully and explore any other arrangements before considering dismissal. You also need to make sure you follow a fair and proper procedure if you did decide to go down this route, and should seek legal advice before choosing to do so.

Key Considerations to be taken into account when weighing up whether to require your employees to be vaccinated:

Currently, private vaccination is not available; individuals have to wait their turn, based on their age and priority to be offered the vaccination. Though allowing only vaccinated employees to come back to the workplace could potentially lead to indirect or direct age discrimination claims by younger employees. However, it is possible to defend such claims where the measures can be justified as proportionate means of achieving a legitimate aim.

You also need to consider health and safety grounds in terms of the extent to which the vaccination reduces the risk of transmission of the virus, which is currently unclear. The current advice is that vaccination is not a substitute for workplace Covid-secure measures, which employees should continue to comply with. There are also data protection implications to think about in terms of requiring employees to provide information on their vaccination status.

What is the best way to achieve voluntary vaccination in your workforce?

Through encouragement and information – you should be informing staff of the potential advantages and disadvantages of vaccination to be able to make an informed decision. That might involve consultation with employees or trade union reps in addition to having a sensitive internal communications plan to try to assist the voluntary take-up of the vaccine. Employers may also wish to consider offering paid time off to attend the vaccine appointment as well as paying for any time off required due to side effects following the vaccination.

Another alternative to a mandatory vaccination policy could be regular testing, on a weekly basis for example. With free testing now widely available to all, that can ensure all employees who do test positive can self-isolate and do not attend the workplace, to avoid transmitting the virus to their colleagues.

Employers should conduct regular health and safety reviews as well, to ensure they’re up to date and properly implementing the Covid-secure guidelines for their particular industry. Employers should also consider allowing employees to work from home where possible, or temporarily changing their role or responsibilities to minimise the risk in the workplace.

Hopefully we are nearing the final few weeks of restrictions. Some of your team maybe excited by that prospect. Just as many may be feeling anxious. What is clear is that clear communication, consultation and a nuanced approach are required. These tactics will prove most effective at reassuring and encouraging your employees during the remaining steps. Doing so should be the most productive solution for your business.

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