Employment Law Q&A: Covid-19 vaccination policies

By Danielle Ayres, Employment Partner

The Covid-19 vaccination has always been a taboo topic.

While for some it has been a priority to get jabbed, others have reserved their right to refuse the vaccination.

Regardless of individual opinions, vaccination rules are starting to inject themselves into our working world and cannot be ignored. With retail giants like IKEA and Morrisons already announcing new policies to cut sick pay for the unvaccinated and healthcare staff facing dismissal if they refuse the vaccination, it’s important to know what your rights are.

Our employment law expert, Danielle Ayres, answers some of the most frequently asked questions about the recent influx of vaccination policies in the workplace.

1. How do these new policies address freedom of choice and companies’ commitments to being equal and inclusive employers? 

“While there has been a mix of good and bad press about this issue, the fact is businesses are doing all they can to survive at the moment. We don’t have exact details about the policies implemented in these businesses, but many of the news reports do state “unvaccinated workers without mitigating circumstances.” This caveat implies employers will deal with claims on a case-by-case basis, rather than simply rolling it out to all unvaccinated workers.”

2. How do you think this could impact companies’ reputations as a brand and as an employer? 

“To be frank, I’m not sure it will. Since IKEA first implemented new policies, we have seen various other businesses follow suit. The pandemic has had such a massive impact on stores such as IKEA and Morrisons, they need to take strong measures to limit the impact of the pandemic on their businesses.”

3. How would you communicate this change in policy to staff and roll it out across a workforce? 

“While the change in policy may seem like a large endeavour, it’s not actually such a mammoth task to undertake. It doesn’t involve any changes to contracts of employment but instead, simply updating a current Sickness Absence Policy (or the policy managing staff sickness absence) and notifying staff of that change will be enough.

In most cases, policies and their terms are not actually contractual and can therefore be changed whenever an employer sees fit, to suit the needs of their business.”

4. How do you address individual instances where there’s an exception to the rule? 

“Given that this is a fairly new approach, there has been no case law dictating the stance a Tribunal will take. In my opinion, this could create liability for discrimination cases, such as disability (i.e. if someone has a condition which means that they cannot be vaccinated).

However, from what I have read, employers implementing this change will look at circumstances on a case-by-case basis and take into account mitigating circumstances – such as medical issues – when applying the policy thus reducing the potential of discrimination cases.”

5. What’s the likelihood of increased employment tribunals against companies like IKEA in the future? What should HR/legal team be preparing for now?

“This is so far untested in the Tribunals, so I cannot say anything for certain. I do however expect that the HR/legal teams will have carefully documented the basis and reason for this policy change to ensure that, if a claim or multiple claims are subsequently brought, they can explain why it was necessary and justified.

We have heard a lot in the press about how many staff are absent due to self-isolation so it’s likely that companies are implementing this policy change to keep the company afloat and stores and helplines open, despite the mounting absence levels.”

6. Do you think other brands/businesses will follow suit? What do they need to prepare for if so? 

“Yes, and they already have. Since IKEA first implemented the policy, brands such as Next, Morrisons and Ocado have all introduced new rules for unvaccinated staff and we can definitely expect more to follow suit in the coming weeks and months.”

7. Could this be a bargaining tool to get more people vaccinated? 

“Potentially. While it could be seen as a way to nudge those on the fence into getting vaccinated, nine in ten of those aged 12 or over in the UK have had a single jab, meaning the number of people who this policy change may affect could be limited.

From what I can see, it seems as though firms are simply implementing the policy changes to cope with the staff shortages and financial losses they have faced due to the pandemic, not in a bid to actively get more people vaccinated.”

8. What are the pros and cons of implementing this type of policy change? 

“There are two main cons that stand out to me. Number one: bad publicity. Making any kind of controversial decision can lead to bad press, so firms need to be prepared for this type of backlash and negative recognition they may receive.

Secondly, we could see an influx of discrimination claims against employers that have implemented the change, and not properly thought it through.  As I said earlier, this type of claim is so far untested in the Employment Tribunals, so it will be interesting to see how this plays out in the future.

In terms of pros, the change in policy would hopefully mean more staff will be in work, ensuring businesses can continue to run effectively and save on costs (especially after the difficulties imposed by the pandemic.)”

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If you need any further support or guidance on how to navigate your rights regarding the issues discussed above, please get in touch with us at employment@primaslaw.co.uk.