Covid and employment law: latest updates

Self-isolating rules

Rules around self-isolation changed in August. For practices, this means fully vaccinated staff/students who are identified as a contact of a positive Covid-19 case will no longer need to isolate and will be expected to return to work. This assumes the following conditions are met:

• a negative PCR test prior to returning to their NHS workplace. Staff/students should not attend work while awaiting the PCR test result
• the person has had two doses of an approved vaccine, and is at least 14 days post double vaccination at the point of exposure
• provision of subsequent, daily negative LFD antigen tests for a minimum of 10 days following their last contact with the case before commencing a shift (with test results reported to Test and Trace/Test and Protect and to their duty manager or an identified senior staff member). Any contact who has a positive LFD test should self-isolate and arrange a PCR test
• the person is and remains asymptomatic
• continued use of infection prevention and control (IPC) measures, in line with the current UK IPC guidance.

Holidays

Staff may still be reluctant to travel too far afield due to the changing traffic light system, but practices should ensure workers are taking holidays regularly. This helps reduce risk of stress/burnout and also prevents a bottleneck of annual leave requests. Practices could consider asking staff to use up a certain amount of annual leave by a certain time. They may also choose to stipulate that holidays should be taken by giving double the difference in notice, so 10 days’ notice for a five-day holiday period.

Vaccines

There has been much written in the press regarding vaccines, with the “no jab no job” slogan being bandied about.

Except for care homes in England, employers cannot force employees to have the vaccine.

Legal basis

Managers seeking to implement mandatory vaccination may cite the Health and Safety at Work Act 1974, which places a responsibility on employers to protect the health and wellbeing of employees and others affected by the business. However this does not offer a legal basis for requiring vaccination. Another element to consider would be the balance between Article 8 of the Human Rights Act (respect for private life) and the risks that may stem from staff not having the vaccine.

Reasons for refusal

Employers should first consider why an employee has refused.

It may be related to a protected characteristic, such as a disability. Having a protected characteristic cannot, in itself, prevent the practice from lawfully dismissing an employee for refusing to be vaccinated. Indirect discrimination or discrimination arising from disability can be justified if the discriminatory act is a proportionate means of achieving a legitimate aim.

In the case of a potential disability discrimination claim, the practice would need to show that all reasonable adjustments (such as redeploying an employee to another part of the business where vaccination may not be deemed necessary) have been considered before any final action has been taken. An employee may also argue that they are refusing the vaccine on the basis of a philosophical or religious belief.

Many vaccines are produced with animal products, which could lead to objections from some religious groups as well as vegans – all of whom are protected under the Equality Act. For new staff joining a practice it may be possible to make vaccination a condition of employment in the contract, but this would also be subject to any discrimination risks.

Unfair dismissal

Employees with more than two years’ service have the right to claim unfair dismissal and therefore a practice would need to show that dismissal of a member of staff for this reason was warranted. Justification might include having patients at a medical or dental practice who refuse to deal with a non-vaccinated staff member – or concerns that the safety of vulnerable patients may be put at risk. A fair assessment process would need to be established and this would include providing the employee with adequate explanation and warnings that continued refusal could result in their employment being terminated.

Talking it over

It could be possible, at least in theory, to justify disciplining an employee who refuses the vaccine on “unreasonable” grounds, or if they refuse to be redeployed in a lower-risk role. A practice might be able to show that such steps are proportionate in extreme circumstances where there are no other reasonable alternatives to protect vulnerable persons.

The best approach in such a difficult and sensitive situation is to try to reason with the employee. Explain why they are being asked to have the vaccine and the benefits to themselves and the practice/patients. Discuss any concerns they have and try to alleviate these.

The government has stressed throughout the pandemic that employees should not be penalised for following Covid-19 guidance – including the guidance that vaccination is not mandatory.

There are risks to practices in either disciplining or dismissing an employee who refuses the coronavirus vaccination, so proceed with extreme caution.