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11/02/2021

Covid19 & Employment Law - common questions answered

There are so many uncertainties in many areas that have arisen from the coronavirus pandemic. Here our Senior Employment Solicitor, Irina Polyakova, answers some common employment law questions. 

Do employees have the right to be notified if a colleague/customer develops the virus?

  • The Data Protection Act 2018 defines information about an employee's health as a "special category of personal data".
  • This means that it can only be processed by the employer in defined and restricted circumstances.
  • Employees must be notified of the infection risk as soon as possible. However, the identity of the individual should not be disclosed if possible, and the employer should not provide more information than is necessary.
  • An employer should simply advise that an employee who has been in the workplace has been infected and that appropriate precautions should be taken.
  • The Information Commissioner Office has confirmed that it will take a pragmatic approach to enforcement in light of the pandemic. It has also issued Coronavirus recovery - data protection advice for organisations: Testing which confirms that employers can disclose to colleagues that an employee has contracted COVID-19, provided they do not give more information than is necessary and, in most cases, it will not be necessary to name the individual.

Can an employer require employees to wear a mask in the workplace?

  • Employers have an ongoing health and safety duty to employees, and there are measures that employers could and should be taking to minimise risk.
  • The WHO Guidance advises employers to develop a policy on wearing masks or face coverings in line with national or local guidance.
  • It recommends that non-medical masks are worn in settings where physical distance cannot be achieved, such as places the employee is in close contact or potential close contact with others e.g. social workers, cashiers and servers.
  • An employer considering requiring employees to wear a mask or face covering in both public and non-public areas should consider the guidance on face coverings for the particular type of workplace involved as part of its risk assessment.
  • An employer that, having regard to official guidance, any relevant legal requirements, and its own risk assessments, has implemented a rule or policy on face coverings, will usually be able to rely on the employees' implied duty to follow lawful and reasonable orders as the legal basis for those requirements. However, specific objections should be considered on a case by case basis. If the reason that the employee refuses to wear a mask is medical and they can provide evidence of this, it is unlikely that an employer can treat this as a failure to obey reasonable instructions.
  • If an employer intends to require employees to wear face coverings, it should provide employees with suitable face coverings and guidance on how to use them safely, in the same way that it would with any other workplace safety equipment.
  • The law and guidance on wearing face coverings in the UK is constantly evolving.

What can an employer do if an employee won't wear a mask?

  • If the instruction to wear a mask is a reasonable management instruction in the circumstances, the employer may be able to instigate disciplinary action if the employer refuses to cooperate.
  • Reasonableness will depend on a variety of factors, including any relevant legislation or official guidance, the reason for refusal, the degree of risk, and whether other measures are available to reduce risk (which may include wearing a visor, maintaining 2m distance, and/or increasing ventilation).
  • Where the employee's reason for not wearing a mask relates to a disability, the employer will have a duty to make reasonable adjustments for the employee. Again, what is reasonable will depend on the circumstances. Whether the employee should be permitted to carry on working in close contact with other people will depend on the balance of risk employer's risk assessments. Other options may include temporarily moving the employee to other work. A dismissal or other disciplinary action for failure to wear a mask, where the reason for not doing so arises out of a disability, would amount to unlawful discrimination unless it could be objectively justified.
  • Where there is no other work, and the employer considers that the risks associated with allowing the employee to continue working in a public-facing role are too great, the employer may have to consider other options.

Possible options may include:
- A warning for misconduct.
- Dismissal for gross misconduct (if the employee's conduct is sufficiently serious).
- Dismissal on capability grounds, on the basis that the employee can no longer safely perform their job.
- Dismissal for some other substantial reason.

However, this is untested territory, and dismissal would carry serious risks as to its potential fairness even if a fair procedure were to be followed.

Whether an employer would be able to send an employee home without pay for refusing to wear a mask is unclear. This may be an option if the employee is hourly paid and has no guaranteed hours (a zero-hours or casual worker), since reducing hours to zero would already be permitted under the contract. However, where the employee is salaried, or has guaranteed minimum hours, the position is more complicated. On the one hand, there is authority to suggest that an employer does not have to accept part-performance, and could therefore exclude the employee from the workplace (and not pay them) until they agree to comply with the instruction to wear a mask. On the other hand, there is authority to suggest that where the employee's inability to work is due to an "unavoidable impediment" or external constraint (which might arguably be the case where they cannot wear a mask for health reasons), the employer should continue to pay them.

Can an employer prevent employees going out in their lunch break?

  • The employer would need to consider whether, in all the circumstances, this would be a reasonable instruction to employees. Factors to take in account might include the current level of lockdown (both local and national), provision the employer would make for employees during the lunch hour (including access to food if employees usually go out to buy their lunch if bringing in lunch or collecting it on the way to the office is impractical), whether the employees' commuting time and working hours mean that it is important for them to leave the office to run errands/do shopping (to the extent that those things might be reasonably necessary given the current instructions for social distancing) and the importance of employees taking a break from work (they may need to take time at lunch to take a walk/exercise if that is possible).

Can an employer discipline an employee for failing to follow social distancing guidelines outside the workplace?

  • An employer can discipline an employee for refusing to follow social distancing guidelines in the workplace.
  • It is also possible that an employer could discipline an employee for failing to socially distance outside the workplace.
  • Employees have a statutory duty to:
    • Take reasonable care for their health and safety and that of anyone who may be affected by their acts or omissions while at work.
    • Co-operate with their employer so far as is necessary to enable compliance with any statutory duty or requirement relating to health and safety.
  • Further, where the employee has been included in photos on social media that may be visible to the employer's customers or the general public, this could be damaging to the employer's reputation. Employers who have issued clear guidelines to employees on social distancing may also consider whether the employee's actions are a failure to follow reasonable instructions.
  • What is appropriate will always depend on the particular facts, including the nature of the employer's business, the employee's role, and the restrictions that applied at the time of the employee's actions.

Implications of vaccination

It is looking increasingly likely that mass immunisation against COVID-19, at least of those at highest risk of serious illness, will be possible during 2021. The availability of vaccination will create the opportunity for employers to start a return to the workplace, but also raises a number of legal issues.

Can an employer require employees to be vaccinated against COVID-19?

  • This is a highly sensitive issue that will require careful communication with employees and their representatives.
  • The government has not legislated for the vaccine to be mandatory, so on balance it would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people.
  • The Acas guidance advises that employers should support staff in getting the vaccine, but cannot force them to be vaccinated. However, it acknowledges that it may be necessary to make vaccination mandatory where it is necessary for someone to do their job, for example where they travel overseas and need to be vaccinated.
  • Nevertheless, in a recent survey, 23% of employers said they plan to require staff to be vaccinated and HR software has already been launched to help employers monitor which workers have had the vaccine.
  • We address some of the issues involved in introducing a mandatory vaccination requirement below.

Potential discrimination issues

  • Any available vaccine may not be suitable for all. For example, some of the vaccines in production are not suitable for certain individuals with suppressed immune systems (but others may be suitable).
  • In order to avoid arguments of disability discrimination (where an employee is unable to get the vaccine because of a health condition) or age discrimination (where it is not suitable or available for those of a certain age), any requirement would need to be couched in terms which allowed for exceptions. It is also possible that certain religious or moral objections to the vaccine could be protected under the protected characteristic of religious or philosophical belief.
    • For example, gelatine derived from pigs is often used in mass produced vaccines. This may also be a concern for vegan or vegetarian employees.
    • There would then be a separate question of how those employees (who are unable to get the vaccine) are treated in the workplace if they are not immunised and the workplace practices are modified to reflect that the majority of other employees are vaccinated. For example, it is possible (depending on a whole range of factors, including the efficacy of the vaccine) that protective measures could be relaxed where staff have been effectively immunised (although this is likely to take some time given the likely period for roll-out of a vaccination programme). For those who cannot be immunised, it may be appropriate to continue with appropriate protective measures (to protect both them and any colleagues, patients, clients or customers who are not immunised) or consider redeployment, and obviously the potential discrimination arguments would need to factor into whether or not that is appropriate.

Effect of vaccination on workplace health and safety measures

  • Although widespread vaccination may eventually reduce the measures required to make a workplace COVID-secure, it remains to be seen if and when the types of measures employers have introduced since the start of the pandemic can be reduced or removed altogether. This reflects the points made above: it may be a long time before sufficient numbers of people are vaccinated, it is very unlikely that any vaccine will be 100% effective, and there may be both employees and patients/clients/customers who cannot receive the available vaccines. Employers should therefore be cautious about treating the vaccine as a mechanism to remove other measures. This may feed into a decision about whether it is appropriate to compel employees to receive it in light of the legal risks of doing so, especially at an early stage in the vaccination programme.

Personal injury claim risk

  • A cautious employer may also be concerned about the risk of even a small number of employees having an adverse reaction to the vaccine. An employee who was compelled to obtain the vaccine and who suffers an adverse reaction, may attempt to bring personal injury proceedings against the employer.
    Introducing a contractual requirement.
  • For those who can receive the vaccine, introducing a contractual requirement that they do so would amount to a change in terms and conditions.
  • Any contractual change would need to satisfy the usual considerations where a change to contractual terms is proposed.
  • We can envisage many employees objecting to such a requirement, either due to their concerns about the safety of the new vaccine (whether well-founded or not) or due to an opposition to being compelled by their employer to undertake what is effectively a minor medical procedure. Without agreement the employer would be faced with either unilateral imposition of the change, or terminating and offering re-engagement on the new terms. Both options carry significant risks, particularly when the change is so controversial, and taking account of the potential human rights argument and the discrimination issues.
  • Introducing such a requirement for new employees only avoids this risk, and some of the other potential legal risks, but it does little to secure widespread protection within the workforce as most employers anticipate low levels of recruitment for the foreseeable future.

Alternatives to mandatory vaccination

  • An alternative to introducing a contractual requirement would be to introduce a policy on COVID-19 immunisation which requires that all employees who can be immunised, are immunised. However, the absence of a contractual requirement may make it more difficult to fairly and reasonably discipline or dismiss the employee.
  • In view of the risks of a mandatory vaccination programme, it is advisable for employers to consider how best to achieve voluntary vaccination within their workforces.
  • Collective consultation with employee or trade union representatives in addition to a sensitive internal communications plan may contribute towards voluntary take-up of the vaccine.
  • An employer has an implied duty to take reasonable care of the health and safety of its employees and to take reasonable steps to provide a safe workplace and a safe system of work.
  • This could well extend to an obligation to inform staff about the advantages and disadvantages of vaccinations - particularly since evidence suggests that the success of vaccination in eradicating the spread of the virus will depend on the extent of the take-up.

What are the potential data protection implications of vaccination?

  • If the employer processes any personal or special category data as a result of a requirement for its staff to be vaccinated, then many of the data protection considerations that apply in relation to mandatory temporary checks would also be relevant.
  • It is also worth pointing out the possibility of a national requirement for individuals to hold an immunisation passport that would record whether or not they have received a vaccination against COVID-19.
  • Potential data protection, privacy and discrimination implications of such a national measure will also need to be carefully considered.

Can an employer discipline or dismiss an employee who refuses to have a COVID-19 vaccine?

  • The existence of a contractual requirement to obtain the vaccine does not, necessarily, allow the employer to lawfully discipline or dismiss the employee if they fail to do so.
  • We expect that a tribunal in an unfair dismissal or constructive dismissal claim would have sympathy with an employee who did not want to get the COVID-19 vaccine and was dismissed or disciplined as a result.
  • A tribunal would be slow to find it fair to impose what is effectively a medical procedure on employees, although we are unaware of any authority directly on the point and the nature of the workplace could be a relevant factor.
  • The Acas guidance suggests that a refusal to be vaccinated could, in some situations, result in a disciplinary procedure.
  • This would depend on whether vaccination was necessary for an employee to do their job. Employees who believe that their employer is being unreasonable in making vaccination mandatory are advised to try and resolve the problem informally or raise a grievance if informal resolution is not possible.
  • Privacy considerations could come into play in considering fairness in this context.
  • There may be scope to argue that a vaccination requirement is an unnecessary invasion of an individual's privacy, particularly when there are other, less invasive, ways to minimise the risk of transmission in the workplace.
  • Under the Human Rights Act 1998, UK courts are required, as far as possible, to interpret all legislation in a way that is compatible with the European Convention on Human Rights, and it is unlawful for public authorities (which would include public sector employers) to act in a way which is incompatible with the Convention. As a requirement to take a vaccine would likely be an interference with the Article 8 right to respect for private and family life, an employment tribunal and a public sector employer would need to carefully consider whether that interference can be justified.
  • Another possibility is that an employer may decide on health and safety grounds not to permit individuals who have not been vaccinated to attend the workplace. Such a course of action could potentially give rise to age discrimination claims (on the basis that younger workers are unlikely to receive the vaccine until the last phase of immunisation) and also disability discrimination claims (if vaccination is not suitable for an individual due to underlying health issues).
  • Breach of contract or unlawful deductions from wages claims could also arise if unvaccinated employees' pay is affected because they are not permitted to attend work. In light of these considerations, employers should consider other alternatives, such as working from home or regular testing of employees who have not been vaccinated.
  • Special treatment should also be afforded to pregnant workers.

What protections do employees have when they raise health and safety concerns?

  • Employees and, in some cases, workers have additional rights not to be dismissed or treated detrimentally where they raise health and safety concerns.

Automatically unfair health and safety dismissal

  • Certain dismissals related to the raising of health and safety concerns amount to automatically unfair dismissals. The right applies to actual and constructive unfair dismissals. There is no qualifying service requirement and compensation is uncapped. Section 100 of the ERA 1996 protects employees by providing that dismissal shall be automatically unfair where the reason for the dismissal is one of the following reasons:
    • Dismissal for designated health and safety activities. For example, dismissal of an employee designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety where the reason for dismissal is the fact that they challenged the employer in that capacity.
    • Dismissal of health and safety representatives or committee members. For example, dismissal of an employee designated as a workplace health and safety representative, or member of a workplace safety committee, where the reason for dismissal is the fact that they challenged the employer in that capacity.
    • Dismissal for raising health and safety concerns through other reasonable means. Where there is either no health and safety representative or safety committee, or it was not reasonably practicable to raise the matter in that way, an employee is protected from dismissal where they use reasonable means to bring to their employer's attention circumstances connected with their work which they reasonably believe are harmful or potentially harmful to health and safety, and they are dismissed on that basis.
    • Dismissal for leaving or staying away from dangerous workplace. Where an employee reasonably believes that they are in serious and imminent danger and they could not be reasonably expected to avert it, they are protected from dismissal if they leave, propose to leave, or refuse to return to the workplace while the danger persists.
    • Dismissal for taking action to prevent danger. Employees who, in circumstances of danger that they reasonably believed to be serious and imminent, took or proposed to take appropriate steps to protect themselves or other persons from danger, are protected from dismissal on that basis.

For more information about this or any other employment law matter contact Irina on 01484 821 300 or at irinapolyakova@eatonsmith.co.uk