By Helen Jamieson, Founder and MD at Jaluch HR & Training (www.jaluch.co.uk)
COVID-19 vaccination is an essential tool to help stop the pandemic and businesses have already been encouraging employees to take up the offer as soon as the opportunity arises. Some have even gone a step further. For example Barchester Healthcare has announced a ‘No Jab, No Job’ policy for new hires. Others are considering across-the-board mandatory vaccinations for all staff.
The intention of such policies is clear; to protect employees and clients. However the issue of ‘forced’ vaccination is a legal minefield. For care leaders, this is an especially pertinent dilem- ma. If any sector should adopt a mandatory vaccination policy, surely it should be that which supports our most vulnerable?
A RECKLESS POLICY
In my view, as an HR adviser for some 30+years, it would be a brave, even reckless business that employs a ‘no jab, ‘no job’ policy. Existing legislation, and recent government statements have made it clear that vaccination is not mandatory.
While vaccinations have been administered to millions of individuals, there are many who are refusing, including many who work with the most vulnerable such as in care homes. Whether for religious or spiritual reasons, health concerns, fear of needles and mistrust of vaccinations, there are many reasons why an employee might decline a vaccination.
For health and social care employers this causes a myriad of issues. Bear in mind that under RIDDOR and the Health and Safety at Work Act 1974, employers have a duty to take all reasonable steps to ensure the health and safety of staff and clients.That means that where an employee refuses vaccination, the employer has to revisit and reconsider how it can operate, given this duty of care.
So let’s take a look at this issue in more detail…
For employees whose hesitancy of vaccination is borne of fear, mistrust or misinformation, as an employer the best place to start is with a mission to inform and encourage.This means taking a proactive approach to communicating the benefits of vaccination to staff – carrot rather than stick.
The CIPD (Chartered Institute of Personnel & Development) suggests running an awareness campaign based on NHS information. It also suggests employers:
– Offer employees consistent, accessible and factual safety data which promotes the genuine achievement of science in producing an effective vaccine.
– Consider counteracting misinformation and conspiracy theory spread through social media. read up about COVID-19 vaccinations via official and reliable sources
Staff should feel able to raise anxieties about vaccination to their managers. Finding out the reasons why they are hesitant means you’re able to point them towards the right information, from trusted sources. Encouraging employees to make the choice to receive the vaccination without force or coercion will always deliver a better outcome.
A REASONABLE REQUEST
Given the nature of health and social care clientele, it may be considered a reasonable request to ask your staff to have a vaccine as a condition of their employment. Failure to adhere to a reasonable request can, in theory, lead to grounds for disciplinary action and ultimately dismissal. But be very careful.
Disciplinary action and dismissal in normal circumstances can be fraught, with all the checks, balances, procedures and legislation we have in place to ensure fairness. COVID-19 is no different, other than the fact that with no tribunal cases having been brought yet, there is no precedent and therefore no direction on the possible outcome. Do you want to be the test case? And how will your stance of requiring vaccination for Covid stack up when considering fairness when you do not require vaccinations for flu or shingles, etc?
Rather than rush to disciplinary action, first and foremost make sure you understand the reasons why they are objecting. Are they allergic, or have a medical condition that prevents them? Under Equality and Discrimination law they could be protected from any such action – even a fear of needles could be covered
under this.Where this is the case, you could consider redeployment from ‘front line’ duties or take other steps to ensure Covid-secure health and safety – additional PPE, for example.
WHAT ABOUT SO-CALLED ‘ANTI-VAXXERS’?
There is some debate about whether the refusal of a vaccine can be considered a protected philosophical belief under the Equality Act 2010. It is possible that if it came to tribunal, an employer could successfully argue that an ‘anti-vax’ opinion does not constitute a philosophical belief.With no case law to draw from in this area, is it a risk worth taking?
Again, conversation, communication and information should be the preferred strategy in any such circumstance. If that fails to shift views you may need to consider not allowing unvaccinated employees to work and ultimately, consider a dismissal. Any employers considering this should always seek professional advice.
CHANGING EMPLOYMENT CONTRACTS
For existing employees any unilateral change to the contract by the employer could lead to resignations and claims of constructive dismissal. It is possible for employers to ask for agreement to vary to include a mandatory vaccination clause.
Whether or not agreement is given, practically speaking there’s still no way for the employer to legally force employees to have a vaccination.This would be akin to criminal assault!
Some employers have taken the approach that only new starters will have a mandatory vaccine clause in their contract.This avoids issues around changing the terms of employment of existing workers but only half solves the problem.
DATA PROTECTION AND PRIVACY
As care providers it may be reasonable for you to ask employees about their vaccination status. However, bear in mind that the vilification of those working in the NHS who have refused the flu jab for years has, by and large, driven the non-vaccination group underground and they are therefore likely to strongly refute it is reasonable for you to ask for such sensitive data.
If you do get the data, all such information must be treated sensitively and inline with data protection measures. Proof of course, is another matter – will you take their word for it? With the government naysaying vaccination passports, what proof can you ask for and what proof will be reliable? Already there are fake vaccination certificates springing up on the internet for travellers who are looking for a work around to airline requirements. At present there is no real ‘proof’ you can ask for other than making a specific application to a GP for confirmation, which may or may not be given, depending on each GP surgery’s approach to providing access to such information.
If employees refuse to answer, we return to the issue of whether they are refusing to comply with a reason- able request – again a minefield given the lack of case law on this issue.
Remember, health related data is subject to strict data protection regulations; GDPR and the Data Protection Act 2018.You will need to consider your current data protection and privacy policies and amend accordingly, bearing in mind that sensitivity and classification of medical data under these rules.
The subject of the COVID-19 vaccination programme can be contentious and lead to the expression of strong opinions. However, employees must remain responsible and respectful when communicating with their colleagues about COVID-19 vaccinations. Any employee who is offended by, or concerned about, a colleague’s behaviour in this regard should feel able to raise the matter with management and/or raise a formal complaint via a clear grievance procedure. Calm, responsible leadership will be key here to minimising time-consuming and costly complaints as well as maintaining good employee relations and trust.
As you’re beginning to see, the issue of ‘mandatory’ COVID-19 vaccination is multi-faceted. In determining your approach, other considerations include dealing with time off for vaccination appointments, self isolation following vaccinations and interpersonal issues between staff.The list goes on…
Health and social care vaccinations are pushing ahead at speed.With so many concerns, and potential conflicts arising from this, it is vital that you have a clear and comprehensive COVID-19 vaccination policy in place as soon as possible. Support, advice and help to determine this policy is available at www.jaluch.co.uk/hr-serv- ices. Don’t wait for conflict to rear its head, get informed and be prepared!