The pandemic has brought a whole host of new issues for employers and employees and we’re likely to see the after-effects of these for some time to come. Unfortunately, employers are likely to see an increase in claims against them relating to the treatment of employees during the pandemic.
The first “batch” of Employment Tribunal claims have already made their way through the courts and there are a number of judgments that we can gain insight from. However, no clear principles have been established in the case law so far and it will be a while before we see any patterns emerging.
In the meantime, there are practical steps that employers can take to reduce the risk of employee COVID claims, which we’ve set out below.
The Government’s furlough scheme ended on 30 September 2021. Prior to that there were numerous changes to the Government guidance and, unsurprisingly, this has led to a number of Employment Tribunal claims including claims about whether employees should or should not have been furloughed, whether dismissal during furlough was fair, the misuse or misunderstanding of the furlough scheme where employees were asked to work whilst furloughed and whether or not employees were paid properly during the scheme.
Going forward, now the scheme has ended, the claims are more likely to be around the return to work, redundancy and discrimination. A few pointers to reduce the risk of grievances and claims:
The question of whether employers can insist that their staff are vaccinated and whether they can dismiss an unvaccinated employee is complex. While it is understandable that employers wish to ensure that their staff and customers are as safe as possible, employers do not have the right to compel employees to be vaccinated and therefore any “no jab, no job” dismissal is likely to be unfair. Alternatively, if an employee is forced to resign because the employer is insisting they are vaccinated, this may amount to a constructive unfair dismissal. As well as these risks there is also the risk of discrimination claims if employees are refusing the vaccine on the grounds of disability, pregnancy or religious or philosophical belief.
The situation is different for those working in care homes where mandating vaccines is lawful – and this policy may be rolled out to other frontline health and social care workers in due course.
However, whilst most employers cannot compel staff to have the vaccine, they can encourage it and indeed this is recommended in order for employers to meet their obligations to reduce workplace risks for staff. Most employees who wish to have the vaccine will have already had it – but booster vaccinations will start shortly and employers can support and encourage employees to have these by allowing time off to get the booster and offering this time off to be on full pay.
Many employers will wish to know which of its employees are vaccinated and use this information to shape its workplace policies. Again, whilst completely understandable, asking or requiring employees to disclose their vaccine status raises a number of legal issues. Firstly, the Information Commissioner’s Office has published advise to organisations collecting vaccination status data confirming that this must be necessary and relevant for a specific purpose if there is a legal basis for doing so. The safest legal basis under the data protection legislation will be compliance with your legal obligations and “substantial public interest”. When collecting vaccine data you must comply with general data protection obligations. If you’d like advice on the data protection issues around vaccine status data please get in touch.
The decision to mandate vaccines and/or collect vaccine status data is complex, with much depending on the particular circumstances of the employer and the employee. Employers thinking of introducing such policies are urged to take specific legal advice.
In order to reduce the risk of claims under section 100 of the Employment Rights Act 1996 (the right of employees to refuse to attend work or take steps to protect themselves or others if there is serious and imminent danger), whistle-blowing claims (the right of an employee not to be dismissed or suffer a detriment for blowing the whistle on unsafe working practices), disability discrimination (the right not to be discriminated against because of a disability which could make an employee more vulnerable to COVID infection) and other unfair and constructive unfair dismissal claims, employers can put in place the following measures: