NEWS & ANALYSIS FMJ.CO.UK
LEGAL VIEW - COVID-19
6 MARCH 2021
WORKERS DISLIKE OF MONDAYS
AND FRIDAYS THREATENS POSTCOVID
ADVANCED
WORKPLACE
ASSOCIATES
I DON'T LIKE MONDAYS (OR FRIDAYS)
Research: Advanced Workplace Associates
Founder: Andrew Mawson
Sustainability Lead: William Buller
19 DIVIDEND
New working practices mean workers will still split their
time between the o ice and home following their return
to the workplace later this year, however analysis by
global consultancy Advanced Workplace Associates
(AWA) has found that people want to work from home
on the same days – Mondays and Fridays – so that their
2-3 days in the o ice are all bunched together, which
threatens to undermine many of the benefits of a parttime
working-from-home revolution prompted by the changes that the
COVID-19 pandemic has brought.
AWA has calculated that with smart working practices post-COVID-19,
o ice workers couldcut theirannualCOemissions by an average of 26
per cent, saving the UK a massive10.5million tonnes of COa year,the
equivalent of sevenmillion return flights from London to New York.
Andrew Mawson, Founder of AWA said: “Analysis we’ve conducted,
along withstudies around the world, show that people will want to change
the way they work when this pandemic is over, coming into the o ice
on average just two or three days a week. However, we predict that with
their new-found flexibility almost everyone wants to go into the o ice on
the same days, avoiding Mondays and Fridays so they can ‘shoulder’ the
weekend. Unless leaders act to managewhen people come intothe o ice
and introduce flexible models of o ice working when they are in,then
o ices will end upnearly empty for large stretches of the week.”
BSC CALLS FOR TOUGHER
COVID-SECURE WORKPLACES
The British Safety Council is calling on both Government and the
Health and Safety Executive (HSE) to strengthen and enforce COVIDsecure
workplace rules to protect workers.
Figures released by the O ice for National Statistics (ONS) show
that COVID deaths are higher among low-paid and manual workers in
England and Wales, underlining the need for stronger COVID-secure
workplace rules to protect workers and for enforcement when rules
are broken in the workplace.
Almost 8,000 workers have died where it is believed that the cause
was directly due to COVID. Workers whose jobs involve regular
exposure to COVID-19 or working near others, continue to have
higher COVID-19 death rates. However, the British Safety Council
says “the HSE, the UK regulator responsible for workplace safety, has
not brought a single prosecution against an employer for breaking
COVID-19 rules, even though people clearly mix in workplaces, which
increases the potential to catch and transmit the virus”.
While HSE Inspectors always act in proportion to risk, the regulator
considers COVID-19 to be a “significant” rather than a “serious” risk,
which according to the British Safety Council is the nub of the issue
and “limits the toughness of its sanctions”.
The British Safety Council says “given we are amid an unprecedented
global pandemic that has resulted in thousands of workplace deaths,
the infection of multiple employees through work-related activities
with a potentially fatal disease seems instinctively to be a ‘serious’
health risk”.
The British Safety Council is calling on the HSE to treat COVID as a
“serious” risk to help prevent further workplace COVID deaths. Whilst
the safety body appreciates “this will impact HSE’s capacity to inspect
workplaces”, recognising the regulator has had a significant cut in
its funding and workforce in recent years, it is therefore, in tandem,
urging the Government to “provide the funding necessary for the HSE
to better protect workers during these unparalleled times”.
VACCINATION IN THE WORKPLACE.
WHAT OPTIONS ARE AVAILABLE FOR
EMPLOYERS?
DEBBIE SADLER SENIOR ASSOCIATE ON THE
EMPLOYMENT TEAM AT BLASER MILLS LAW
Given the vaccination programme’s importance to the Government’s
COVID-19 response, some organisations may want to encourage
employees to get vaccinated in the belief that this will allow them to
return to work. However, the government has confi rmed that receiving
the vaccination will not be legally required, so can an employer force
workers to be vaccinated and, if so, what are the associated risks?
Can an employer enforce compulsory vaccination?
Companies have a legal obligation to protect workers’ health and
safety and provide a safe working environment. Many have spent
signifi cant resources on implementing government guidelines to meet
these obligations, and some may feel this involves ensuring staff are
not placed at risk by working alongside colleagues who have not been
vaccinated. However, this is a sensitive area and employers that feel
strongly about requiring employees to obtain the vaccine must have a
compelling argument.
As vaccination is not compulsory, businesses have no statutory
obligation to vaccinate their workforce. They would, therefore, need to
justify the policy and keep a written record of their reasoning.
Even with a strong business case, enforced vaccination could be
challenged on legal grounds. For example, an employee could argue
that the policy was contrary to their human rights because it impacted
on their right to a private life; employers would need to ensure
compliance with the provisions of the Data Protection Act 2018 and the
General Data Protection Regulations (‘GDPR’). Equally, if an employee
had an adverse reaction to the vaccine, they could bring a personal
injury claim against their employer for any lasting illness or injury.
For existing staff , the terms of their agreement with the employer
are contained in their employment contract. Prior to the pandemic,
few contracts anticipated a medical emergency of this scale, meaning
few contain clauses dealing with workplace testing and vaccination.
The introduction of compulsory testing would, therefore, amount to a
change in terms and conditions. Staff would need to be consulted on
the proposed change to their contract and would need to consent to it.
Do employers have the right to dismiss employees who refuse the
vaccine?
If an employer has the contractual right to require an employee to
get vaccinated and they refuse, the employee would technically be in
breach of contract. This could result in them being disciplined and
ultimately dismissed. However, employers should approach this with
caution because dismissing an employee for any reason is not without
legal risk.
Employees with more than two years’ continuous service have the
right not to be unfairly dismissed and it would be for the employer to
show why they had dismissed them, illustrating that the dismissal was
fair and reasonable.
What are the discrimination risks?
Dismissing or subjecting an employee to a detriment for refusing to be
vaccinated could lead to discrimination claims. Some employees may
be unwilling to receive the vaccine due to underlying health conditions.
If these medical conditions meet the defi nition of a disability under the
Equality Act 2010, taking any kind of action against them for refusing
to have the vaccine could result in claims of disability discrimination.
In addition, if an employee refuses to be vaccinated on the religious
or philosophical grounds and is sanctioned or dismissed because of
this, they could also bring discrimination claims.
Conclusion
The Government clearly believes mass vaccination is the surest way
out of the pandemic, so it is unsurprising that many companies want
to support and accommodate this policy as far as possible.
Employers can certainly encourage staff to get vaccinated, however
care should be taken not to unduly pressurise or mislead staff .
As always, the best advice is to consult and communicate with
staff and to approach the subject of vaccination with caution and
understanding.