Issues in the workplace arising from vaccinations
COVID-19 is moving into a binary world: vaccinated vs unvaccinated. The question of vaccination in relation to COVID-19 can be contentious within workplaces for a variety of reasons and some of these are considered in more detail below.
Can employers require their staff to be vaccinated?
A consideration from many employers is whether mandatory vaccinations are possible. We know that in care home settings staff have had to be vaccinated in order to remain employed since 11 November 2021. This policy is to be extended to workers in other healthcare settings in the spring. However, other than these particular sectors, there is no requirement for individuals to be vaccinated against COVID-19 in order to attend places of work notwithstanding that they may work with vulnerable people or work in confined or busy spaces. It may be a legitimate concern, therefore, of employers that their staff working closely together or with members of the public should be vaccinated in order to protect themselves and to protect the business. In general terms from a recruitment prospective there is nothing to prevent employers from insisting that individuals applying to their place of work have to be vaccinated against COVID-19. However, employers would need to be mindful of potential discrimination arguments, such as disabilities that prevent individuals from being vaccinated, or arguments arising from certain religious or ethnic groups or members of certain nationalities where vaccination is not as common or popular. There would also be the issue of insisting on proof of vaccination as this could be controversial as it is personal medical information. However, it seems to us that a COVID-19 passport could be a way forward in this regard.
In terms of existing members of staff, it may be difficult to insist on mandatory vaccination as the question that would follow would be what happens with people who refuse to be vaccinated. The question would be whether a failure to be fully vaccinated could give rise to a fair dismissal under the ground of Some Other Substantial Reason (SOSR). It strikes us that the Tribunals would historically not have found favour with such an argument, but in these times if the business could demonstrate a valid reason for insisting on the vaccination (for example that they work with clinically vulnerable people albeit not in a healthcare or care home setting) it may be that such a dismissal would be fair – this will very much depend on the particular facts and we would encourage employers to take advice before pursuing such a policy.
How to encourage staff to be vaccinated
As an alternative to making vaccinations mandatory, many employers are trying to encourage their staff to be vaccinated. As referenced above there are certain religious or ethnic groups or national communities that have different views on vaccination to other groups, which gives rise to cultural or religious issues. There also could be issues with language barriers in understanding the vaccination message and information. We are aware that many local councils are providing services to educate and inform workplaces of the benefits of vaccination and how one can come to be vaccinated and can offer this in different languages which could be very helpful for the workplace.
How to deal with issues of bullying around vaccination
Unfortunately, the impact of the pandemic on individuals both in terms of personal loss and personal sacrifice has meant that feelings can run very strongly about things like vaccination. We are aware from certain employer clients that there can be issues between members of staff when someone finds out that somebody else is unvaccinated, for example. These issues should be dealt with in the same way as any other issue around bullying or harassment in the workplace with particular acknowledgement of the sensitivities if they are connected with protected characteristics and processes can be followed as a result. Employers may also want to consider emphasising that medical information such as vaccination status is personal sensitive data and does not need to be shared with other members of staff unless the person feels they wish to. Irrespective of the reason behind the comments, if one individual or group of individuals is bullying and harassing another this would be a potential conduct issue for which a disciplinary process may need to be followed.
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