Can employers force their staff to get vaccinated – and other questions

Can employers force their workers to be vaccinated?

There is currently no legal basis in the UK to make vaccination for Covid-19 mandatory. In fact, the Public Health (Control of Disease) Act 1984 specifically precludes any government regulations from ‘requiring a person to undergo medical treatment’ which includes vaccinations. Employers who try to insist on vaccinations are therefore opening themselves up to potential legal claims. There are sectors and industries where vaccinations will be of vital importance, such as health and social care, and there could be additional considerations for employers in these sectors, although there is currently no requirement from the Government that they have the vaccine.

What can employers do if workers don’t want the vaccine?

Employers have an implied duty to take reasonable care of the health and safety of their employees and to take reasonable steps to provide a safe workplace.

Employers could try and enforce a contractual requirement for workers to get the vaccine, which would most likely amount to a change in the terms and conditions of employment. This could, however, lead to objections on the basis of concerns over the safety of the vaccine, as well as concerns over potential human rights violations. If workers did not agree to the proposed changes, employers could be faced with having to consider terminating employment contracts and offering re-engagement on different terms, with the associated risks that go with that such as unfair dismissal claims, disability discrimination claims and claims for failing to collectively consult.

Alternatively, and perhaps more proportionately, employers could attempt to engage with individuals who are reluctant to be vaccinated and consider implementing or maintaining parallel safety measures for the workplace such as social distancing, frequent testing and adjusted risk assessments.

What liability would an employer face if an employee refused the vaccine and then infected a colleague?

An employer can be held liable for a worker’s wrongdoing when it affects a third party in certain circumstances. The law around ‘vicarious’ liability is complex, but a key element would be the requirement for the infected colleague to prove that they contracted Covid-19 due to a breach of duty for which their employer is liable. In practice this could be difficult, considering the many potential sources of infection. However, it is a matter that employers must carefully consider and take steps to prevent transmission as far as reasonably possible.

What do employers need to know about the extended furlough scheme?

Employers need to be aware of the following key points:

• The furlough grant is currently back up at 80% of full pay subject to a £2,500 per month cap.  So employers currently only need to cover national insurance and pension contributions, although we know this will be reviewed in January 2021 when the employer contributions is likely to increase.
• You cannot claim a furlough grant for those employees serving notice of termination; employers are fully responsible for paying their notice costs.
• The Job Support Scheme that was due on 1 November has been postponed and the £1,000 per employee Job Retention Bonus due in January 2021 has been scrapped.
• There is now a shorter window for making furlough claims. Claims for November need to be submitted by 14 December, and it will be the same 14 day window each month after that
• HMRC are going to publish the names of companies and LLPs who have claimed under the scheme and give a reasonable indication of the amount claimed
• Whilst the extended furlough scheme doesn’t prohibit making furloughed staff redundant, the fact that you now cannot claim the furlough grant during notice is a strong indicator that the government’s expectation is that companies should only be using it for viable jobs.  However, if your business is carrying out redundancies, whether it is possible to continue to furlough an employee as an alternative to redundancy, should be considered.

What should employers be considering if their staff are likely to work flexibly or remotely on a more permanent basis?

As infection rates hopefully continue to fall as we move into 2021, we will hopefully start to see a return to the office or other workplace for many employees and workers.  However, home and remote working has, in many respects, worked very well.  And so it is here to stay, with many employees keen to spend most, if not all of their time working from home in the future.  Employers may therefore want to give consideration to ongoing, more permanent home working arrangements.

Key points for consideration include:

• Update contracts of employment.  If you agree a change to working hours and/or the place of work, ensure your contracts are amended accordingly.  Consider appropriate provisions on homeworking, including confidential information, data protection and health and safety.  And make sure you build in flexibility to be able to change the working arrangements if you need to.
• Aside from the homeworking arrangements themselves, make sure your contracts are fully up-to-date on matters such as: (i) the new requirements of section 1 of the Employment Rights Act 1996, which includes reference to benefits, training and paid leave; and (ii) restrictive covenants, which need to be reviewed from time to time as they can become out of date, for example if an employee has changed roles.
• Review your policies.  Lots of organisations will have policies drafted on the basis of an office-based workforce.  A lot of policies will need updating to reflect the changing nature of the workforce.  For example, disciplinary policies may need to be amended to reflect different types of misconduct that could occur in a remote working environment.
• Consider how remote working may negatively impact talent development and what you can do to address this.  Junior or less experienced employees often benefit from physically being in a workplace, interacting with colleagues and learning on the job.  How will you replace that and ensure you support, coach and develop your employees to enable them to reach their full potential?
• Consider how remote workers are being managed and supervised.  Many employees have been more productive during lockdown when working from home.  However, as with any significant change, not everyone reacts in the same way.  Some employees find home working more challenging, and some will use it as an opportunity to not work as hard as they should.  How will management and supervision work effectively, particularly if you are unable to track performance electronically?
• Consider staff surveys to understand the preferences, opportunities and potential downsides of continued remote working.  Engaging staff on these issues and factoring preferences into your flexible/remote working practices, should pay dividends.

What should employers do to minimise the health and safety risks to staff?

Employees who refuse to return to work are protected if they “reasonably believe that their health and safety will be in serious and imminent danger” if they return to work.  Dismissing or subjecting an employee to a detriment in consequence of such a refusal will leave employers exposed to claims of automatic unfair dismissal and/or detriment under the Employment Rights Act 1996.  This means that careful consideration should be given to any situation where an individual is unwilling to return to work, particularly if there are circumstances that increase risk, such as underlying health conditions or disabilities.

Hopefully these risks will reduce as time goes on and infection rates fall.  But the vaccine is only starting to be rolled out, and the tiered restrictions are still with us. As the restrictions are relaxed in 2021, more employees will return to the office.  That could lead to concerns from employees who are worried or anxious about returning, as the number of people at work increases.

To mitigate risks, and to allay concerns as far as possible, key considerations include:

• Continually update your risk assessment and communicate these changes to staff
• Consult with staff (or H&S reps) on any changes to H&S working practices
• Listen to feedback and concerns and show that you are addressing them
• Follow government guidance
• Carefully consider, and take advice where appropriate, if H&S concerns or objections are being raised

Richard White and Lauren Harkin are partners in the Employment team at UK Top 100 law firm Royds Withy King. If you have a query which you would like Richard or Lauren’s advice on, please contact them at richard.white@roydswithyking.com or lauren.harkin@roydswithyking.com

Richard and Lauren were guest speakers at Allen Associates’ Zoom HR Hub. You can find out more about these popular events, here.