As workplaces open up after nearly 18 months of home working, employers are facing a new raft of dilemmas created by Covid-19. Abigail Maino reports
While some businesses may continue to keep their teams working predominantly from home, for others, there is a real need to encourage employees back into the workforce.
With the majority of people now vaccinated, the risk of transmission in the workplace is mitigated, but what happens when employees choose not to be vaccinated, creating anxiety amongst their vaccinated colleagues?
The short answer is that, by law, employers cannot force their staff to be vaccinated. There is an exception for staff in care homes where vaccinations have been made compulsory, but
even that legislation has a number of exceptions to it.
With the prospect of offices having a mix of vaccinated and unvaccinated staff, employers are now looking at how to handle the delicate situation when the vaccinated person does not want to sit, or even enter an office, where there are colleagues who have not had the vaccination.
A considered approach is always recommended. The first step is for the employer to have a conversation with the vaccinated employee to understand their particular concerns and whether those concerns could be eased by some kind of adjustment in the workspace, for example, sitting in a different area, installing additional screening or ensuring extra ventilation.
One option open to the vaccinated employee might be a flexible working request if they have the required length of service. The employer would then need to carefully consider their request in line with the relevant legislation. Although employees may well argue that they have been working perfectly well from home for the last 18 months, there is a recognition now that homeworking has, in many cases, been an imperfect solution.
If, after all options have been looked at, the employee then refuses to come back to work, the onus is on the employer to consider all options carefully before any formal action is taken. These considerations include whether there was a specific underlying reason, such as a disability, which would potentially require an employer to objectively justify the requirement for the purposes of the Equality Act or consider reasonable adjustments. If the conclusion is that the employee could reasonably be required to return to work, then it is possible the next stage could be an investigation for misconduct for failure to follow a reasonable management instruction.
However, many employers have, to date, been quite cautious before taking any formal action like this, in view of the changing landscape of Covid. Most prefer to have a dialogue to see if alternative solutions can be found. Even in situations where the entire workforce is back in the office, there is still a minefield of tensions that could arise between those who are vaccinated and unvaccinated. For example, if vaccinated staff have to cover for unvaccinated colleagues who become ill.
The best policy for employers is to be clear from the outset. Employers have to assume that they are not going to be able to compel employees to be vaccinated and there is going to be a minority who will be unvaccinated. Difficult issues could arise and the best thing for an employer to do is to be clear in advance what will happen when those issues arise so there are no surprises.
Finally, employers have a legal responsibility to carry out Covid-safe risk assessments to ensure the health and safety of their workforce so that the steps have been taken to reduce the risk of transmission, as far as this is reasonably practical.
Ultimately vaccination is only one of a series of measures to manage the risk of transmission in the workplace. The reality at present is that we don’t know whether the vaccine efficacy will reduce in time, or whether there may be new variants that could impact the effectiveness of the vaccine. That’s why it remains so important to implement the other guidance in the workforce.
Abigail Maino is a Partner in DMH Stallard’s Employment team.
She can be contacted on 01483 467412 or by email at abigail.maino@dmhstallard.com
