Anti-Vax

On 14 September 2021, the UK government published the COVID-19 Response: Autumn and Winter Plan,  which sets out how it intends to address the challenges that may be posed by COVID-19 over the autumn and winter period, ultimately to ensure that the NHS is not put under unsustainable pressure.

Plan A (which will happen if the numbers of infection decrease with an accompanying reduction in number of patients in ICU units in hospital and number of deaths), includes the following measures:

• Everyone with COVID-19 symptoms will be expected to self-isolate and take a PCR test (which will remain free of charge).
• The legal requirement to self-isolate for ten days for individuals who test positive for COVID-19 and their unvaccinated contacts will remain in place.
• “Working Safely” guidance to be kept up to date, including asking employees to stay at home if they feel unwell.

Plan B (which will happen if “if the data suggests further measures are necessary to protect the NHS”) could include:

• Introducing mandatory vaccine-only COVID-status certification in certain settings.
• Legally mandating face coverings in certain settings (which will be decided at the time).
• Asking people to work from home if they can, for a limited period.

Whilst the Scottish Government may take a different path, it is anticipated that some of the measures will be similar.  As mentioned in our previous articles, only the UK and Scottish Governments are able to make vaccines mandatory.

Although you may have employees who, for medical reasons, are unable to get the vaccine, you may well have some employees who by personal choice elect not to receive the vaccine.

As we have discussed in previous blogs, the decision to vaccinate or not is entirely a matter for individual choice and you, as the employer, simply have to accommodate that freedom of choice.

No Jab – No job

Whilst you are presently unable to require employees to be vaccinated, some companies have a real problem with client/customer sites which do not allow contractors or third parties to enter unless they have been vaccinated – this is more to happen in sectors where health and safety is a priority. Examples of this are as the care sector and the energy/oil & gas sector.

If your business provides services to those sectors and encounter this problem then those employees who are not vaccinated will not be able to provide services on site.  In that situation, if there is no other work for you to provide them with, then you are in a position that, given their individual choice not to be vaccinated, there is no work for them to do.

These employees will not be  redundant, on the basis that you still need work of the kind they are providing, and the potentially fair reason to dismiss will be capability, specifically the  lack of capability to do the work or SOSR.

If that is the case, then we recommend you take specialist advice as to the procedure to follow before any decision to dismiss is taken if the employee cannot be re-deployed

Return to Work

If you are planning to return to your workplace, then you must ensure that a detailed risk assessment is carried out within that workplace, identifying potential problem areas, such as any shared area within the workplace (such as kitchen or toilet facilities). Once the risk assessment has been completed you can work on a strategy to safely return to work.  Every workplace will be different, but the responsibility to create a safe working environment and a safe system of work will apply regardless of whether your employees are vaccinated or not.

Some employers have expressed discomfort about asking people whether or not they have been vaccinated, however this is necessary information to shape your health and safety plan and ensure that appropriate measures are put in place to protect all staff, but particularly those who are in any way vulnerable.

It might be advisable to share the risk assessment with the staff, to ensure that everyone is aware of the risks that you have identified and the measures  put in place to remove or at least minimise that risk.

Whilst those who have been vaccinated may not wish to interact with those who have not been vaccinated, there is very little, if any scientific data to suggest that those who have not been vaccinated are any more or less likely to transmit the infection to others, therefore that will simply be part of your communication to staff.  However, notwithstanding the scientific case, employees who are vaccinated may report increased levels of anxiety, therefore it is something you will require to address within any risk assessment on your return to work.

If it is possible, then you may want to consider a mix of home and office working, meaning the numbers in the workplace at any one time are far more manageable from a social distancing point of view.  That would also minimise the potential impact on the business should there be an outbreak at work.

The risk assessment itself should not be overcomplicated and should take account of the actual workplace that you are assessing.  Rather than searching on Google for a generic Covid-19 Risk Assessment, start with a general risk assessment from the HSE website and then think about the risks that are present in your workplace.

Self-Isolation

The potential impact of those not being vaccinated will be most keenly felt when they are either ‘pinged’ through the app, or are in close contact with someone who tests positive and are required to self-isolate.

Even if these employees return a negative PCR test and are unable to perform their role from home, then for that mandatory period of 10 days, they will not be able to attend work.

Many employers ask about the position regarding sick pay?  This will depend upon their specific policy.  If you pay employees for any period of absence, then they will be entitled to be paid, however if your policy refers to employees  being “unwell or ill”,  and they are  self-isolating, rather than showing symptoms themselves, then they would not qualify, as they are not unwell.   In that instance, the employee is entitled to SSP from day 1 of any absence, but not company sick pay.

We recommend that employers check the terms of the contract and the terms of any sick pay policy before deciding not to pay company sick pay.  If you get it wrong, then it could be regarded as an unauthorised deduction from wages, or even a breach of contract.

Balance

Whilst you should not be encouraging people who are genuinely unwell to come to work, you need to ensure that you are taking any legitimate steps to encourage all employees to be vaccinated.

If it means they only get SSP for any period of self-isolation, then although that may be seen as a penalty, it is still entirely legitimate.

With the policy we have drafted, there is an opportunity to incentivise employees to be vaccinated, either with cash equivalent incentives, or paid time off to get the vaccine.  Again, that is entirely legitimate, albeit those employees who are already vaccinated may feel this is slightly unfair.

Conclusion

Whilst there will be many practical and legal issues that you will face when managing your return to the workplace, there are  steps you can take  to minimise the risks, either of a Covid-19 outbreak, or of people being unable to work as they are self-isolating.

If you need any assistance in carrying out your risk assessment, in detailing your communication plan to staff, or indeed with the introduction of a Covid-19 Vaccination Policy, then please get in touch with either Graham Millar (gmillar@gilsongray.co.uk ) or Stuart Robertson (srobertson@gilsongray.co.uk) of our Employment Law Team.