Reasons to choose Wilson Browne
It’s been reported that ministers believe employers can insist on employees having a Covid jab. But is this right?
This is just one question that employment lawyers are asked on a regular basis about actions they should/can take during the on-going pandemic.
As with many areas of employment law, Covid-19 and all its implications is a particularly grey one. What makes it all the more challenging for employers to grapple with is the fact we are sailing previously unchartered waters; those waters will undoubtedly make for a great deal of legal challenge in the coming months.
Many decisions are being guided by the employer’s health and safety obligations. All employers owe a statutory duty to provide a safe place of work; there are also general duties of care owed towards anyone who may be accessing or using their place of business. Let’s take a look at a number of frequently asked questions and how these duties can be discharged.
Does my company need to carry out a risk assessment?
Yes! This risk assessment should not just focus on office/site based workers; it should also cover those working from home. It should also be remembered that it is a living document and, especially now, should be regularly reviewed to ensure it is current.
It’s expected that all employers with over 50 workers publish its Covid-19 risk assessment on its website. However, all employers are encouraged to publish it’s risk assessments this way.
More guidance here on risk assessments
Do I need to do more than just a risk assessment?
Again, “yes”! The starting point for your organisation is a review of the government’s issued guidance on the area in which you operate. Guidance here.
Additionally, your company must assess the risks presented by your own workplace to your own employees, as well as contractors and visitors; this assessment may highlight other actions/preventative measures that are needed. The important thing to remember is the company’s obligation is to mitigate risks; not irradicate them.
Do employees have any H&S responsibilities?
It’s a third “yes”! Employees must take reasonable care for their own health and safety as well as that of other persons. Employees must also co-operate with the company and comply with the rules on H&S. It’s therefore incumbent on companies to inform and, where appropriate, train all workers on the H&S rules and their obligations.
During the current pandemic, at the very least, companies should be regularly updating workers on the measures it is implementing to ensure their workplace is Covid-19 Secure and those actions it expects the workers to undertake.
Can I discipline a member of staff for breaching Covid-19 guidelines?
An employer can discipline an employee for refusing to follow social distancing guidelines in the workplace. It is also possible for an employer to discipline an employee for his/her acts outside the workplace – this could include their failure to socially distance or otherwise breach laws on socialising with others outside their support bubble. This is especially when their actions could have brought the company into disrepute.
It is prudent that employers ensure:
- staff are kept informed of their obligations (this can be achieved by company-wide announcements), and
- their disciplinary policies and/or social media policies are updated to deal with the potential for Covid-19 related disciplinary action.
In all cases, employers will still need to consider the appropriate process to use and/or sanction to apply depending on the particular facts. Relevant in each case will be the nature of the employer’s business, the employee’s role, and the restrictions that applied at the time of the employee’s actions.
What if a workplace colleague has suspected or diagnosed Covid-19?
This is one of many areas where conflicts arise. On the one hand, duties of confidentiality and data privacy must be observed in respect of the workplace colleague. Against this must be balanced the H&S duties owed to the rest of the workforce. Therefore, whilst it is incumbent on the company to warn individuals who have been in contact with any suspected or confirmed case of Covid-19, in the absence of express consent to do otherwise, the company should avoid revealing the name of the worker who has suspected/diagnosed Covid-19 wherever this is possible. This will prove challenging for smaller teams; and where the identity is unavoidably revealed, the information given must be limited.
Can we mitigate the spread by introducing workplace testing?
As has been widely publicised, the government is introducing lateral flow tests in those companies employing more than 50 people. Companies have to register for these tests which are designed to identify those who have contracted Covid-19 but are asymptomatic. However, there are some serious implications which employers will need to bear in mind when introducing any workplace testing. Key are data protection implications. The Information Commissioner’s Office (ICO) has released data protection guidance on workplace testing as this will involve processing an individual’s sensitive data.
Employers who wish to encourage an employee to undergo this testing must be aware of the basic principles of data protection legislation and:
- Consider whether and what testing is appropriate in its workplace.
- Ensure transparency where testing is undertaken– this requires the updating/issuing of data privacy notices,
- Get the retention period right – testing data must be retained only for so long as it is necessary.
- Keep the information obtained from testing secure and limit it’s access to a small number of people.
- Ensure the testing is undertaken by those who are sufficiently qualified – typically this will be a 3rd party supplier and so it’s essential the company has in place the requisite agreements with that supplier.
- Use a Data Protection Impact Assessment (DIPA) – DPIAs can be accessed from the ICO website and can help demonstrate data protection compliance.
Can an employer require employees to be vaccinated against COVID-19?
This is another highly sensitive issue which has given rise to many column inches. It’s also expected to be an area that will keep courts busy with unfair dismissal, discrimination and breach of contract claims.
As it stands, the government has not legislated for the vaccine to be mandatory. For this reason, it will be risky for an employer to insist its employees are vaccinated. This is echoed by the ACAS guidance which advises that, whilst employers should support staff in getting the vaccine, they cannot force them to be vaccinated; it’s acknowledged there may be some limited instances where vaccinations are necessary for the employee to undertake their job.
Even those employers who go a step further and include a contractual obligation that employees receive the jab are likely to face legal challenge if they dismiss or otherwise subject a dissenting employee to a different form of detriment. It’s largely anticipated that tribunals will have sympathy for those employees the employer is affected forcing to undergo a medical procedure. There’s also the right to privacy (the Human Rights Act 1998 still applies despite Brexit!) – an argument which is expected to take centre stage for claims relating to vaccination insistence.
But on the other side of the fence is the health and safety argument.
Ultimately, we suspect, the ability to insist and employee vaccinated will come down to the circumstances of any given scenario; the prospect of being able to insist will be far greater where there’s evidence that the job in question can only be undertaken by someone who has received the vaccination.
Given the prospect of this being a highly litigious area, employers should approach the question with extreme caution, taking legal advice as appropriate and thoroughly document their decision-making process.
Employers will also need to comply with their data protection obligations where they monitor vaccine take-up amongst their workforce.