By Charlotte Ress-John, partner law firm LLP (www.freeths.co.uk)
The hospitality sector is open for business but in order to strengthen trade operators face the challenge of ensuring that both customers and staff feel confident that their venue is a safe place to be. The question of whether operators can or should require staff and potentially customers to be vaccinated is a controversial one. We take a look at your legal obligations.
Customers in Wales and Scotland will need a vaccine passport from this October to enter nightclubs and other largescale events. The Government decided against introducing a similar requirement in England although made it clear that this was not being ruled out and that moving into winter things may change.
Can you require employees to have the vaccine to come to work?
Mandating vaccination is likely to be risky, and could expose your business to claims (for example, unfair dismissal, discrimination and human rights challenges). Instead of implementing a blanket policy on vaccination you should carefully consider the requirements of each worker’s role and consider alternatives to keep the premises safe e.g. on site testing, social distancing, PPE, face coverings, hygiene, and cleaning.
Should you encourage employees to take the vaccine?
Yes. The Health and Safety at Work Act 1974 requires you to take reasonable steps to reduce workplace risks. Encouraging employees to be vaccinated to protect themselves, colleagues and customers is likely to be considered a reasonable step. You should certainly consider educating staff about the vaccine to ensure they are informed about the advantages and disadvantages. The Government has issued guidance for employers about supporting the vaccination programme together with a COVID-19 vaccination toolkit. This is a useful resource and you should seriously consider encouraging staff to get vaccinated now so you are one step ahead should mandatory vaccination for hospitality workers be introduced for the winter.
Can staff refuse to have the vaccine?
Yes. Employees may have a variety of reasons for refusing the vaccine some of which are protected by the Equality Act 2010. Some staff may have religious or philosophical beliefs for refusing the COVID-19 vaccine. You should carefully consider whether a blanket requirement to have the vaccine might adversely affect people with a protected characteristic (e.g. pregnancy, religious and philosophical beliefs). This may be discriminatory and then you would need to think about whether you could objectively justify mandatory vaccination.
Can you ask staff to show you their NHS covid pass?
This would carry significant legal risk, in particular discrimination risks, and would be difficult to objectively justify.
Can you ask customers to show a Covid Pass before entering your premises?
As an operator you should note that the Equality Act 2010 provisions (see above) also apply to the provision of services. Therefore unless legislation requiring customers to show a Covid Pass is introduced you should be cautious in imposing a blanket requirement for customers to show a vaccination passport without considering the specific circumstances of each case.
What might the winter bring?
The Government has recently passed new regulations which makes it mandatory not just for employees and workers but to all those who enter care homes (including tradespeople) to have the Covid-19 vaccine, unless they are exempt. This new law is the subject of a judicial review but is relevant because we could see something similar this winter for the hospitality sector.
Care homes are obliged to carry out checks and keep records or face fines or worse. The way the regulations were introduced left care homes little time to prepare and to ensure that all of their staff were vaccinated or exempt. Hospitality operators would be wise to start conversations with staff about having the vaccine now. That way you will be prepared should a similar vaccine requirement be introduced at short notice if there is a new variant this winter.
