There is currently a conflict in legislation which is going to cause employers some massive issues in the coming months and it is only going to be resolved with case law!
The technology is in place to provide proof of vaccination from Covid-19, either as a paper-based system or with biometric vaccine certificates.
AND
Employers have a duty of care to ensure that their workspaces are healthy and safe.
AND
Service providers are also obligated to ensure that service users are able to do so safely i.e. care homes, supermarkets etc.
BUT
Employers are unable to require staff to get vaccinated.
If someone believes that getting vaccinated against Covid-19 is not right for them on religious grounds, because they are medically vulnerable, because they are an anti-vaxxer or because they just don’t feel the covid vaccines have been through enough testing, then there is very little employers can rely on in law at present.
Options include:
- moving the employee to another role where they are not a risk to anyone
- leaving them on furlough leave until the scheme ends
- putting them on paid leave.
The risk of a claim for harassment or discrimination on grounds of religion, beliefs or disability are very real and potentially very expensive.
An employee who is fired because they won’t have the vaccination could bring a claim for bullying, harassment, discrimination (no service requirements before a claim can be brought) and unfair dismissal (employee needs 2 years of service) or constructive dismissal (where they felt they had no option other than to resign). As soon as there is a claim for any form of discrimination, the award in an Employment Tribunal is uncapped.
And the person bringing the claim does not need to be an employee! If someone is not offered a job because they are not vaccinated as a result of their religion, beliefs or disability, then they are able to bring a claim against the ’employer’ too.
If you try to put the employee on unpaid leave or a sabbatical, they could bring a claim for illegal deduction of wages. Even if you put them on leave on full pay, they could claim that you are treating them differently because of their beliefs or disability.
All of this needs to be balanced against the human rights of service users i.e. to be able to access a service safely with the provider taking all reasonable steps to protect them. This is particularly the case where care workers are refusing to be vaccinated. If they are working with vulnerable people, the employer has a very real dichotomy which is only going to be solved with education and discussion. Any attempt to bully someone into being vaccinated, or bribing them or holding their job to ransom is illegal.
Where other employees are involved it may be a case of a health and safety at work issue: As an employer, you are obliged to ensure a healthy and safe working environment. If you knowingly allow people to attend work who have not been vaccinated, you are exposing the rest of your staff to the risks associated with Covid. At the current time (Feb ’21), we know that the vaccinations reduce the risk of becoming very ill, but we don’t yet know if it reduces the transmission rates. An employee who feels unsafe at work is able to leave work immediately if they believe that there is an imminent danger to their health or safety by remaining at work. They are protected by the law. It may be this employee who brings a claim against the employer for failing to provide a healthy and safe working environment because the employer was unable to remove unvaccinated staff from the workplace.
Every situation is different. Do not believe what you read in the press. Make sure you get advice and don’t put your business at risk by having to choose to protect clients over employees or one employee over another. This is going to be a case of waiting for case law and until such time, making the best decisions you can for your business and your staff.
