By Sanika Karandikar - 26 August 2021
Employers who want to mandate the Covid-19 vaccine as a condition to employment (or employees returning to the workplace) will have to tread carefully. In England, vaccines for care home staff are compulsory, and therefore only employers in this sector will have a clear legislative basis for potentially disciplining and dismissing employees who refuse the vaccine. Employers have a duty to ensure a safe place of work under the Health and Safety Act 1974 and to take reasonable steps to reduce any risks in the workplace. One way of doing so would be to try and maximise employee vaccine uptake and Public Health England has issued guidance for employers wanting to encourage and incentivise the uptake of vaccines within their workforces.
Employers have the option of putting a vaccination policy in place, which either mandates or incentivises vaccine uptake. However, depending on the sector and with many still working from home, employers may want to consider whether such a policy is reasonable and proportionate given, for example, the limited exposure of employees to one another. A policy mandating vaccination before all adults in England have been offered 2 vaccine doses is also risky, and best practice may be to focus on encouraging vaccination through certain incentives.
Having in place a ‘blanket’ vaccination policy which includes the requirement to be vaccinated, is therefore inadvisable and individuals should instead be considered on a case-by-case basis. The main legal risk with mandating the vaccine to the employer is the exposure to unfair dismissal claims from employees with over 2 years’ service and discrimination claims for employees with protected characteristics in particular; age, religious belief or disability. Mandating vaccines for new joiners is less risky given there is no risk of unfair dismissal claims, however candidates still have the right not to be discriminated against because of their protected characteristics. Any vaccination policy or recruitment policy should therefore ideally be temporary and kept under review and should be expressed to be subject to exceptions on a case-by-case basis.
As well as encouraging vaccine uptake, employers should consider making it easier for employees to attend vaccination appointments. Acas has published guidance that encourages employers to take certain steps, for example: paid time off for vaccination appointments, paying staff at their usual rate of pay if they’re off with vaccine side effects (rather than Statutory Sick Pay) and not counting vaccine-related absences in absence records in the same way.
Mild side effects from the vaccine are common, but seldom last more than a few days and so SSP would not generally be payable since the total period of incapacity would likely be less than four days. Although not tested, it is unlikely that withholding either statutory sick pay or contractual sick pay from an employee who has refused to get the vaccine would be permissible. The reason an employee has become ill does not affect their entitlement to SSP. Some employers may include a provision in an employment contract that limits the payment of sick pay where an employee’s sickness or incapacity is due to their own recklessness or negligence, but it is doubtful whether this provision would apply in this situation.
If you have any questions relating to this article please get in touch with Sanika Karandikar or your usual GQ|Littler lawyer.