No jab, no job!

The COVID jab is definitely the way forward, and the way out of lockdown. But, it is starting to create a lot of tension in some sectors, particularly around the subject of employers enforcing the ‘jab’ on their employees. So, what is the legal situation?

Can employers force employees to get the jab?

In short, the answer is ‘no’. In the UK, medical treatment is not mandated, it is based on personal choice. We decide what happens to our bodies and we have the absolute right to refuse treatment, including the COVID vaccine.

In fact, if an employer were to ‘force’ an employee to take the jab, they would be committing a criminal offence.

However, it is not quite as straightforward as you might think!

What does health and safety law say?

Well, unfortunately, the law might hinder – but it might also help.

The starting point for every employer is a ‘risk assessment’. EVERY employer, regardless of the type of business, should have a ‘health risk assessment’, which considers the implications of the coronavirus on the individual and on the impact the infection might have on the business.

Each company will have a different outcome with their risk assessments. For example, a firm of office workers will almost certainly have a completely different risk assessment to a firm that sends employees into people’s homes. A construction company will have a different outcomes to a food processing plant.

The risk assessment is the starting point. The risk assessment should consider the potential of harm to employees and to the public and it should make a judgement on the control measures that might be needed to prevent harm. Control measures will differ from company to company.

UK health and safety law is not prescriptive; it does not mandate. For example, just because it is now humanly possible to vaccinate everyone, this does not mean that employers MUST vaccinate. The law is based on ‘risk and reward’ and it takes the potential to harm into account too. This is why risk assessment is so important, because it forms the basis of justification.

We can require employees to wear protective equipment, and we can require employees to attend training courses, but only if we can justify why PPE or the training is needed. This is the power of risk assessment, because it becomes our justification for the things we need employees to do.

Can a job offer be conditional on vaccination?

The answer here is ‘yes’, almost certainly. Last month, the Justice Secretary publicly backed this idea, stating that future contracts of employment could impose a requirement to have a vaccine. However, he stressed that any explicit requirement for new starts to have a vaccine MUST be justified. The justification comes in the form of a risk assessment.

So, any employer thinking about building the requirement for new starts to have a COVID vaccination into the job offer must think seriously about their justification, through the process of risk assessment.

But what about existing employees?

This is where the story gets a little more complicated. For an employer to mandate the vaccine, he would need to change the ‘contract of employment’ for each employee. This would involve consultation with the workforce and, again, justification through the process of risk assessment.

Any employee who is dismissed on the grounds of not being vaccinated could bring a tribunal case against the employer. Employees with more than two years service could raise an unfair dismissal claim. Remember, in the UK we do not mandate medical treatment, it is our choice whether or not to put this new substance into our bodies.

Employers need to adopt the following

All employers, regardless of sector or type of company, should adopt the following approach.

  1. Carry out a risk assessment and from the findings of that assessment, develop a COVID Protection Policy.
  2. The risk assessment and policy should identify the potential to cause harm and it should include reference to: PPE, hygiene measures, social-distancing, workplace bubbles, interaction with the public, transportation and working from home.
  3. Communicate the risk assessment and the policy to all employees and, where relevant, contractors and third party workers.
  4. Think about education of the workforce and how to communicate the benefits of taking the vaccine.
  5. Perhaps think about workplace champions; people who have the trust of the workforce, perhaps trade union or employee representatives, to help communicate the message to employees.
  6. Monitor Government guidance and update the risk assessment and policy regularly.

Keep your business safe and do not impinge human right

COVID will be with us for many months, and perhaps years to come. It is therefore important that employers have procedures and practices in place to help protect employees and also to help protect their business.

The last thing a company wants is to be in court defending a breach of human rights. By taking a proactive approach, through the process of risk assessment, education and training, employers can help protect their business and the people affected by their activities.

Home working is here to stay, so let’s do it safely

How can employers ensure they get the most from home working?

The COVID pandemic has definitely changed how people work, at least in the short-term. But for many small businesses, the ‘new normal’ might be their vision for the future.

Long after we have stopped talking about COVID, face-masks and social distancing, we may still be talking about home working. So, how can employers ensure that staff are safe, healthy and productive?

I have been advising my clients to adopt the five-step approach to home working.

STEP 1: Keep people safe and informed

I had a call last month from one of my clients, an owner of a small firm in Falkirk. One of her employees was making a cup of coffee at home and he spilled boiling water over his hand. He contacted his GP and was advised to pop over to the clinic, where a nurse had a look at his injury and bandaged up his hand.

The employee who was scolded contacted his local environmental health officer to complain about his employers ‘lack of safety’! The environmental health officer then contacted the business owner and asked for a copy of the firm’s Working at Home Policy.

Without going overboard, home workers should be given a Working at Home Policy. It should be a simple document that contains reference to the main hazards and risks associated with working at home. A health and safety inspector from the local authority is quite within their rights to request a copy of the policy.

STEP 2: Set goals and objectives

Goals help to motivate staff. Remote working can be a lonely existence and having goals and objectives to concentrate on can be hugely valuable.

Goals and objectives help motivate employees

It is really important that goals and objectives can be met. In fact, it is a good ideal to encourage employees to over-achieve, because this can be incredibly motivating.

Discuss goals and objectives with each employee and continually revise them as the weeks and months go past.

STEP 3: Keep communications open

For many, the office is more than just a place to work; it is a place to socialise, where people can chat about personal stuff as well as work-related topics. A recent survey carried out by a Scottish mental health charity found that most people surveyed about home working said they missed the opportunity to discuss personal things and that this was having a detrimental effect on their mental health.

Humans are social creatures, and we need to have the opportunity to interact with others. That is why it is essential for business leaders to maintain communications while working remotely.

The boss needs to speak fairly regularly with employees to find out what they are doing and how they are doing. There is no harm in challenging employees if you think they are taking too long to complete a task. Challenge them and ask why it is taking longer than usual. Of course, it might be that they are struggling with working remotely or with some other aspect of the job, or they might be struggling, like many, with their mental health.

Regular communication is key to working remotely. Something that works really well is the ‘twice per week call’; once formally and once for an informal catch-up. Most of our clients have a mid-week call to discuss transactional matters and a Friday call where they shoot-the-breeze for an hour. This can be done as a group and if facilitated well, it can provide just the right level of contact to keep people engaged, without feeling like being micro-managed.

STEP 4: Be fair but be firm

If an employer has set goals and objectives and an employee is not performing well enough, it needs to be sorted out. Provide support where necessary and trust them if they say their performance has temporarily dipped because of circumstances outside their control. However, be prepared to step in and challenge where it is needed. Just because people are working remotely doesn’t mean that disciplinary action cannot be taken.

Disciplinary action can be taken remotely

Just because we are working remotely doesn’t mean that disciplinary action cannot be taken

We facilitated a virtual disciplinary session last year for one of our clients. An employee was continually failing to meet their goals and they were coming up with all manner of excuses. Our client decided ‘enough was enough’ and asked for our help. To ensure the session was carried out in accordance with the law, we facilitated a virtual disciplinary session and the employee was given a formal written warning. Hopefully, things have settled down now.

STEP 5: Provide enough equipment

Back to health and safety again! Of all the questions that I have been asked over the last 12 months, by far the most popular is ‘what do I need to provide for home working’?

Well, as an absolute minimum, every employee should have a Working at Home Policy that details the main hazards, risks and controls, and where the expectations of the employer can be written down and communicated to employees.

Employers must provide basic equipment, such as a computer and monitor. But how about broadband, a desk, and a kettle that has been electrically tested?

Health and Safety law uses the concept of ‘control’ when determining what is reasonable. If an employer can control the working environment then they have to put in place precautions to prevent injury. However, as far as home working is concerned, an employer does not have total ‘control’ over most things – the kettle, for example. This is where the Working at Home Policy comes into play.

A Working at Home Policy is an essential part of remote working. The policy should be based on a Working at Home Risk Assessment and should contain information and guidance on maintaining a safe working environment.

Trust brings reward

Employers should always trust their teams. Trust brings motivation, commitment and enthusiasm. Home working is a great example of where trust is so important. However, even if you do trust your employees, it does no harm to have measures in place to ensure that everyone does as they are supposed to do.

Let us know if you need help with your Working at Home Policy.