Legal Developments Webinar 23rd February – your follow-up questions answered, Part 3 (UK)
As attention turns increasingly to the practicalities of the physical return to the workplace in what may be little over 3 months, questions of employers’ rights and obligations in relation to testing and vaccination are becoming more common. These are vexed areas which can easily put common interest into conflict with civil liberties. Just how far should you have the right to make decisions about your own health if in doing so you may endanger that of others? Here are answers to a couple of questions on this raised at our webinar last week.
We have seen lots of “no jab, no job” recruitment adverts. Is that lawful?
We think that in most cases it probably is lawful, but there are a number of procedural and substantive hurdles to get over first.
None of the new guidance from Acas or the Department of Health goes as far as to state expressly that such a policy (or compulsory testing – see below) would be lawful. Both would clearly like to do so, but have fought shy of taking that plunge because of the need for neutrality and balance in their advice, and because there will inevitably be exceptions and conditions to any such rule, especially around vaccinations, which it would be impossible for them to describe exhaustively.
Acas says that “Employers should support staff in getting the vaccine once offered”, talking to them and any recognised union and “sharing the benefits of being vaccinated”. It suggests that to encourage staff to be vaccinated, employers “might consider” – i.e. no actual obligation — (i) offering paid time off to attend vaccination appointments; (ii) paying staff their usual rate of pay if they are sick with vaccine side effects, instead of SSP; and/or (iii) not counting vaccine-related absences in absence records or towards HR intervention points. We would support the first, but since no professional medical certification would realistically be obtainable, (ii) and (iii) do seem unnecessarily open to abuse.
However, all this is merely encouragement. “In most cases it is best to support staff to get the vaccine without making it a requirement”, says Acas, and that if the employer considers it really important, it “should work with staff or the organisation’s recognised trade unions to discuss what steps to take”. If in the course of those discussions “someone does not want to be vaccinated, the employer should listen to their concerns”, ensuring that it is sensitive to individuals’ situations and that it keeps those concerns confidential. While it may become necessary for line management to know which of their employees have been vaccinated and which have not (in case this has consequences for their permitted physical location, access to company or customer premises, etc.), the reason why vaccination may have been declined is not for them to know, at least initially.
Under “Resolving an issue about getting the vaccine”, Acas recommends initial attempts to resolve the matter informally, but notes that staff remain entitled to raise grievances and employers to start a disciplinary process. The latter (plus the reference to “In most cases” above) clearly implies that there are circumstances in which Acas accepts that the employer can insist as a reasonable management request that the employee be vaccinated if he is to retain his employment (or at least, his current role). This is particularly the case if the employer makes the sort of concession around sick pay and absence recording which Acas mentions.
Those circumstances will be those which generate a clear public health justification for the request to be vaccinated. It will assume that there is a material, even if not absolute, link between your being vaccinated and limiting the scope for your transmission of the virus to others. The more that your employees are in close proximity to each other or clients, the stronger the argument that the vaccination could be required, and still more so if key clients begin to insist that any of your staff dealing with them should have been vaccinated. By contrast, staff who work at a distance from other human beings, mostly outside or at home clearly do not pose anything like the same risk to others and so the imperative nature of the vaccine would be much reduced. Last, allowance will need to made for those for whom the vaccine would potentially be harmful (including those who are pregnant or have certain underlying health conditions).
Where employees have not been vaccinated but still need to come into the office, can we require them to have a rapid COVID test before they come on site?
Guidance from the Department of Health and Social Care updated last week makes cogent arguments for workforce COVID testing, as it will “identify more positive cases….and ensure that those infected isolate”. As a result, “we want as many employers as possible to sign up to regularly test their employees”. The guidance confirms that running employee testing programmes is voluntary, but notes at the same time that doing so “can provide confidence to workers and customers in the workplace, helping to protect and enable business continuity”, thereby tacitly helping employers to establish that a requirement to be tested is a reasonable and business-relevant request with obvious potential consequences for the employee’s job if he refuses.
The Department’s guidance recommends Lateral Flow Tests as the way forward, these requiring very little training to operate and producing a result without the need for laboratory assessment within 30 minutes. It says that pregnancy tests are the best known form of LFT, so please do check the packet before use. For those paid at or around the national minimum wage, remember that that 30 minutes will count as working time if you insist on the test. The guidance recommends a minimum of 2 tests per employee per week, though you could probably relax that if the employee spent very little time with others. Employers with 50 staff or more who are unable to work from home can get the test kits free from the Government so the direct cost to the business is in time rather than money, while those with fewer employees will need to rely on community testing instead.
The argument that employers can insist that employees be vaccinated is stronger still in relation to compulsory workplace testing, since there can be even less reason why an employee would legitimately decline it. In the end, we believe that the weight of informed medical opinion, encouragement from the Government and the virulence and potential gravity of COVID not just for the employee in question but for colleagues and customers will together tilt the balance of inconvenience between employer and employee off its normal axis. Where the protection of public health against a clear and present danger is concerned, it is our view that the interests of the individual must necessarily be subordinated to those of the majority to a much greater extent than usual. Remember also the duty on employees under the Health & Safety at Work Act to cooperate with the reasonable requests of the employer so that it may comply with its own obligations. As a result, and subject to the usual prior procedural requirements if disciplinary action becomes necessary, the dismissal of an unvaccinated employee for refusal to take a COVID test could well be fair.