Blanket roll-outs of Covid-19 vaccinations may not be as straightforward as franchisors and franchisees think. HR expert Sue Tumelty examines the nuances in the issue.
We’re reaching a turning point in the story of this pandemic, with vaccinations already underway and hopefully leading us towards a return to something resembling normality.
However before businesses rush to plan policies which see their entire workforces vaccinated, it’s worth stopping for a minute and checking the legality behind the practicality.
Government guidance to working safely during the coronavirus pandemic states that company owners have the right to make ‘reasonable requests’ to minimise risks to other employees in their business.
However under the Equality Act, all employees also have certain protected rights under religious or philosophical beliefs, and they may be justified in claiming protection under these laws.
Therefore companies which fail to approach the issue with sensitivity and an eye on the relevant legislation face opposing risks of claims of discrimination on one hand and potentially losing staff on the other.
The problem of safety versus freedom of choice
At the moment, most employers are simply thinking about when they can get their employees vaccinated. That’s a simple enough question to answer, given the Government’s timeline of aiming for all adults having a vaccine by the autumn.
From there, though, the questions are not quite so straightforward. Employers should be considering whether they can ask that employees get vaccinated and what their options are if anyone refuses.
What on the face of it may seem a reasonable health and safety precaution in embracing the vaccine is full of nuance. And there is no case law to which to refer, so businesses should be extremely careful.
Doing any more than asking, which is best done by a non-contractual policy which outlines the benefits of vaccination and why you are recommending it, exposes you to a number of risks.
Insisting on employee vaccinations really depends on whether the request is reasonable or not. For example, there’s an obvious difference between asking a care home worker to get vaccinated, compared to someone who works by themselves remotely, for instance.
Customer facing franchise businesses – food and drinks, for example – will have different grounds for what is reasonable when compared to professional services firms like ours at The HR Dept.
Are employees protected under their belief systems?
One of the protected characteristics of the Equality Act is religion or philosophical belief. A person who does not believe in vaccinations or a person whose religion bans the use of certain substances found in the vaccine may claim protection under this.
In December the Vatican has said it is acceptable for Catholics to have the vaccine and other religious leaders have since followed suit. However, some other faiths may not accept it. Those who are pregnant or suffer from severe allergies would likely be prevented from having the vaccination on medical grounds. So it is a complex area.
Even if you did go down a dismissal route – and I’m sure there are alternatives which would be preferable – the process would have to be properly followed, taken on its own merits and based on the employee’s refusal to help mitigate risk which had been properly assessed and reasonably requested.
Even a compromise has implications
Of course one option – something which is becoming ever more commonplace in our current working environment – is to roll out home working policies for those who are not willing to be vaccinated. But there are issues to consider here, too, even if this is a viable option for your business.
For starters, would offering such a policy incentivise other employees to claim religious grounds for not taking the vaccine, if it meant they could permanently work from home? Such behaviour would jeopardise the national effort to beat the virus and might also create an unsavoury dynamic in your workforce when unity and common purpose is essential for business survival.
Have you considered the legal risks of allowing staff to work flexibly? The home office becomes the workplace and there are then issues to consider over health and safety and data protection, among others.
I would suggest that education, persuasion and a thorough examination of options will generally be a better starting point than confrontation; but professional advice is essential.
