With there being media hype regarding uncertainty around COVID rules and the NHS App ‘ping-pandemic‘ plaguing many PCA members (as well as your Association itself), we took some time to ask a few questions to your Associations H&S partners ‘Stallard Kane‘ as to what we can and cannot do to help minimise the risk to both the health of teammates as well as maintaining the health of the business in itself!.
However, with a strong drive to get everyone ‘double jabbed‘, a gradual steady stream of increased travel, venues, and others easing rules/restrictions for those that are ‘double jabbed’; is this likely to get worse? Do we need to encourage or can we enforce employees to get themselves double vaccinated to protect colleagues and businesses? To find out more, continue reading to find out what the team from Stallard Kane had to say…
Can you insist staff are vaccinated?
In short, no. The Government has made it clear that the vaccination is not a legal requirement. Therefore, whilst employers are likely to be in favour of their employees being vaccinated, there will be workers who are concerned about the vaccine and would prefer not to have it, for various reasons. As such, employers must be aware that forcing employees to be vaccinated could lead to claims of breaching human rights as well as discrimination claims, depending on each case’s circumstance.
What is important to consider is that whilst the vaccine does reduce the risk of individuals experiencing severe symptoms of Covid-19, it does not prevent the spread of the virus. Those who have been vaccinated can still become infected and pass the virus on. As such, regardless of who has had the vaccine, employers should continue to ensure that other health and safety control measures are in place, with a view of reducing the risk of spread to staff. Choosing not to have the vaccine is ultimately the individual’s risk to bear.
There are very limited circumstances where disciplinary action will be justified and therefore, employers do run the risk of potential unfair dismissal claims or constructive unfair dismissal, by dismissing or threatening employees because they refuse to take a vaccine.
Can you insist on workplace testing?
Just like the vaccine, it is against our advice to insist that employees engage in workplace testing. Forcing employees to take regular tests could lead to claims of breaching human rights as well as discrimination claims, depending on each case’s circumstance.
As per the ACAS guidance, there is no law that says staff must be tested for coronavirus (COVID-19) and in most situations, it’s not necessary. Regardless of how many employees are tested, a test is only accurate at the point that it is taken – employers should continue to ensure that other health and safety control measures are in place, with a view of reducing the risk of spread to staff.
If someone does not agree to be tested, the employer should listen to their concerns. It’s important for the employer to be flexible and try to find ways to resolve any issues.
It can help for the employer and employee to talk about the reason the employee does not want to get tested and what might help resolve the issue.
Is there a template for the Workplace Testing Policy?
A template policy is provided within the complimentary PCA Business Shield members area. Please note that this policy is only an example and may need amending to suit your organisation. Click to log into your PCA Business Shield to view.
What if someone refuses to test and also refused to wear a mask? (because they cite it makes them anxious)
Keep in mind that some people are exempt from the requirement to wear a face covering. The Regulations in England state that this includes where someone is prevented from wearing a face covering by a physical or mental illness or disability, or because wearing one would cause them severe distress.
Therefore, if an employee refuses to wear a face covering, the employer should ask the reasons why – keep in mind that you are entitled to ask for evidence of their health condition or disability if this is the reason cited.
Where the employee has a legitimate reason for not wearing a face covering, the employer should consider if their role could be adjusted so that they can keep at least 2m from others, be separated from others by a screen, or wear an alternative to a mask such as a visor/shield.
Employers must ensure that they do not discriminate against employees with a disability when enforcing rules on wearing face coverings. The employer should discuss with the employee what reasonable adjustments could be made.
Alternatively, if the employee does not have a legitimate reason for not wearing a face covering, a failure to wear one is likely to be a refusal to follow the employer’s reasonable instruction and therefore grounds for beginning a disciplinary process.
We have recently seen this tested in the Employment Tribunal where it was ruled that a delivery driver who refused to wear a face mask inside his cab while delivering to a supplier during the UK’s first Covid lockdown was fairly dismissed. For those interested in finding out more, click to read more about the Tribunal.
What is the legal standard that governs these areas?
– Returning to Work – further information can be sourced via ACAS:
– Vaccinations– further information can be sourced via ACAS:
– Workplace Testing – further information can be sourced via ACAS:
In terms of the guidance covering the UK, we can confirm that the Equality Act applies across the entire UK, hence the comments made re human rights and discrimination claims apply to all.
Interested in finding our more
For PCA members wanting to find out more, you can always visit and log in to your PCA Business Shield account where you will find a wealth of information an guidance. Alternatively, as PCA members, you can always contact the team at Stallard Kane direct on YOUR dedicated PCA number: 0345 076 6395.
For those reading this blog that arent PCA members, the team at Stallard Kane are also happy to give you any advice or guidance. Feel free to contact them on 01427 678 660.
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