Back to the Future in Employment Law?
Davies and Partners Employment Law Specialist Angela West looks at the last year of unprecedented changes.
"The past 15 months will certainly be remembered as a time when just about every aspect of life changed. At the start of 2020 nobody had heard of the term ‘furloughed’ in an employment law context or the Coronavirus Job Retention Scheme (CJRS). COVID 19 had only just been declared ‘a global outbreak’ by the World Health Organisation (but was something which was happening on the other side of the world), and national lockdowns and wearing masks in public were something you would expect in a Sci-Fi movie.
The Furlough Scheme was a first of its kind in UK political history and has meant that for many employers, they have been able to ‘keep going’, as opposed to making difficult decisions about potential business closure or reducing headcount to save costs. Many businesses have needed to adapt and completely remodel their business strategies, and how they deliver their products or services. The pandemic has resulted in a major shift in employees working remotely from home, with many asking whether the ‘new norm’ of working is here to stay beyond the pandemic.
Our team of employment experts at Davies and Partners, believe one of the biggest challenges employers will face this coming year is getting their employees back into the workplace. Whilst the vaccine roll-out provides much-needed optimism, many employees may still be anxious about reintegrating into the workplace, and being in close proximity with others. There may be many reasons why an employee may be concerned; they may have been shielding or living with someone who was shielding and are still considered ‘clinically vulnerable’ The employee may have a disability within the meaning of the Equality Act, which may mean an employer should consider reasonable adjustments, which could include allowing an employee to continue to work from home for some or all of the time. As opposed to viewing this as a challenge, employers could turn the situation into an opportunity to develop and implement an enhanced work/life balance.
With Furlough Leave (CJRS) coming to an end in September 2021 (and we don’t envisage this being extended again), and the hope that lockdown restrictions will continue to be eased and eventually lifted, it is essential that employers open a meaningful dialogue as soon as possible to discuss any concerns. An employer faced with an employee who ‘refuses’ to return to the workplace will need to be able to demonstrate ‘reasonableness’ especially if considering disciplinary action or even dismissal if they consider a refusal constitutes misconduct. Being able to demonstrate reasonableness will include proactive steps in assessing an employee’s individual circumstances and understanding those concerns.
Employers have a duty of care to ensure a safe working environment, and Covid risk assessments should be reviewed regularly, particularly if more employees are returning to a workplace. Employers who fail to discharge their duty of care could face claims under the Health & Safety at Work Act, as well as constructive unfair dismissal claims. Employees could also bring whistleblowing claims if employees assert that they were subject to a detriment as a consequence of raising such concerns. Company Directors can also be disqualified if convicted of an offence in connection with the management of a company, which would include health & safety offences.
One consideration for employers is whether the requirement for employees to be vaccinated should form part of the control measures to ensure a safe working environment. With one in six people reporting* that they would be unlikely to agree to a Covid vaccination can an employer compel an employee to have a Covid vaccination? We think the short answer is “it depends”! The Public Health (Control of Diseases) Act prevents a person from being required to undertake medical treatment such as vaccinations, and Article 8 of the Human Rights Act preserves the right to private life. In the absence of any legislation to the contrary, an employee who refuses a vaccination would not be breaking any laws.
Employees may have legitimate reasons for refusing the vaccine, such as pregnancy, medical or religious grounds or other beliefs. Employers could end up facing discrimination claims if a refusal is due to a specific Protected Characteristic.
However, there may be sector-specific consideration to be debated, for example, those who work in care homes or NHS employees could be considered to be acting in a way which is inconsistent with organisational values. Ultimately, employers will need to ensure that they avoid workplace ‘vaccine segregation’ and balance the competing interests of those who may well have legitimate reasons for refusal versus those who deem it essential to work in a safe environment.
Sky News has reported that Justice Secretary Robert Buckland has suggested Employers may be able to draw up contracts requiring new staff to get a Covid jab but acknowledged “that it was unlikely bosses could legally require workers to receive a jab under existing arrangements”. Pimlico Plumbers are amongst one of many Employers who have indicated they will not take on new staff who refuse the vaccine on non-medical grounds.
The vaccine debate is certainly one that is likely to be prevalent this year and one which will likely end up being tested in the courts.
For now, innovative and responsible Employers can reap the reward and avoid conflict by embracing change, being open to considering a new way of working, and turn challenges into opportunities to ensure a harmonious transition from the new norm to the future norm, whatever that might be."
Angela West, Senior Associate.
Any Employer who would like to discuss their business requirements please contact one of our team
* Report for the Centre for Countering Digital Hate and Anti-Vaccination Industry November 2020.
** Report by Sky News on the 18th February 2021.