Returning to the workplace - business as usual or a new normal?
From Menzies Law
It is sometimes difficult to know where we are with this pandemic as advice from Government regularly changes about where employees should be working. As this goes to print, you could have everyone still working from home, on-site working on rotation (allowing you to keep groups separate), on-site working for anyone who wants to come in - but it’s not compulsory, a phased return for all with an end date when ‘everyone is back’, or have everyone back already. With so many options, here’s legal advice on the most common questions we’re receiving:
Can we encourage our staff to be vaccinated? Yes. The Government is keen on employers doing what they can to encourage employees to be vaccinated. There are some helpful resources out there - go to: Covid-19 vaccination: guide for employers - Gov.UK (www.gov.uk)
Can we reopen offices to vaccinated staff only? Yes, but with caution. It does create a possible ‘two tier’ workforce. You should also consider why some employees have not been vaccinated (there could be medical reasons). Vaccination status does not currently obviate the need for employers to ensure a Covid secure workplace - ventilation, cleaning, reviewing social distancing and the wearing of masks are all important.
Can we insist our employees are vaccinated? At this stage, no. Apart from limited settings, it is not a legal requirement for most workplaces. Such a policy might be justified in very limited circumstances (where the job involves close personal contact which cannot be minimised by other Covid secure measures).
Can we ask employees to declare/provide evidence of vaccination status? Only if there is very good reason to. In some workplace settings (e.g. health and social care) it will be justifiable but in other settings, this is a GDPR issue. What would be your justification for doing so and how would this information be stored/used?
What can we do if employees refuse to work with people who are not vaccinated? We are already hearing stories of employees being shamed at work because they have not been vaccinated. This is a sensitive issue. In the first case, we advise reassuring all staff that the workplace is Covid secure. In one situation, we’ve seen this resolved by showing the employee the risk assessment and making sure the employee’s line manager understood the concerns and put in place extra steps like enforcing social distancing when the team are together. Ultimately, after exploring all options, if someone continues to refuse to work because there are unvaccinated employees (without good reason) then there may be no option but to consider disciplinary action.
We have vocal ‘anti-vaxxers’ at work - is there anything we can do? A belief that vaccinations are bad for society is unlikely to amount to a philosophical belief and therefore is not protected under the Equality Act. With that in mind, where individuals are being particularly vocal about their own views to the discomfort of others, our advice is to address this directly with them. Give them clear instructions that they need to stop doing this in the workplace and then make it clear if they continue to do so it could result in disciplinary action being taken. If they continue, this could then be escalated to disciplinary action. We are aware that some employers are asking employees not to ask each other about vaccination status. They are explaining it is a personal choice, it’s part of the organisations’ culture of respect and tolerance and making it crystal clear that overzealous communication of personal views to the extent this makes others feel uncomfortable in the workplace will be treated as a disciplinary matter.