Employers warned to take robust steps to mitigate potential risk of tribunals as UK offices reopen

Employment lawyers across the country are bracing themselves for an influx of enquiries as the confusion about Covid-19 vaccine rights escalates. Further to debates about vaccination passports for licensed premises and travel facilities, the simple act of going back to work could be the most complex issue yet, according to one of Scotland’s most prominent law firms, Gilson Gray. Graham Millar, employment law partner at Gilson Gray, commented: “An employer has a moral and legal duty of care to ensure that employees, customers and visitors to its premises are safe. There are many reasonable steps they can take to ensure this is the case, particularly as we emerge from the pandemic.”

“However, employers also have a duty to ensure that employee are not treated unfairly for any reason, such as their choice not to be vaccinated against Covid-19.  This is likely to create a very tricky line for employers, and the contradiction will likely see many difficult conversations and potential tribunal claims over the coming months.”

Businesses that already actively care for vulnerable people or are serving members of the public may already have strong protocols in place to operate virus controls in as safe a way as possible, given that many have remained open during the pandemic.  However, thousands of other businesses will be playing catch-up and will need to install the same measures, including enforced distancing, increased cleaning, handwashing reminders and sanitisation.  It is not unreasonable to assume that many employers will consider asking an employee who has not been vaccinated and who would mix with colleagues and customers simply not to return to the workplace just yet, but in doing so, they could leave themselves legally vulnerable.

Graham continues: “As the law stands, unless there is specific contractual provision, employers cannot exclude someone from the workplace for refusing the vaccine. The only way this would be enforceable is if the government mandated it, which is unlikely. Whilst employers should be positively encouraging their employees to take the vaccine, it is not the only measure that they should be focussing on.  Therefore, employers need to be aware of infection control measures, and take all steps possible to minimise the risk of transfer ahead of reopening their premises.  Undertaking rigorous and regular risk assessments will be vital to ascertain what precautions are needed as these are the areas that will be scrutinised by a tribunal.”

Gilson Gray is advising employers to appoint one person to have overall responsibility for ensuring that all possible safety measures have been adopted and has created a helpful checklist to help guide employers through its recommended steps;

• Risk assessment – conduct a physical or virtual walk round of the office noting all common points where contamination may be a particular risk and adopt a range of steps to help prevent the spread of infection e.g. enhanced deep cleaning, health and safety notices, greater social distancing gaps, passing places etc.
• Implementation plan – draft a robust plan and communicate clearly, effectively, and regularly with all employees to ensure everyone understands how to implement the new safety measures. Highlight that if any employee do not adhere to the new rules it may become a disciplinary matter.
• Review and refresh – given the ever-changing situation, employers must keep abreast of all government lockdown rules and adapt their rules in accordance with its advice. At this point the process should start all over again with a fresh risk assessment and updated implementation plan that is once again communicated to all employees.

In conclusion Graham advises: “While we wait for the law to find a precedent after a complete disruption of our working lives, rights and protections, employers are best served by doing all they can do to fix the issue before it becomes a problem.  While we may think the risk of Covid is diminishing, we don’t know what might happen when workplaces reopen, so by introducing rigorous safety measures in the workplace, businesses can try to avoid the possibility of costly claims, as well as increase the confidence of their staff and customers.”

For further information, or interview requests please contact:

Vanessa Kennedy, 0131 285 4790 /  [email protected]

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this news article, please seek specific advice from Gilson Gray.