By Daniel Parker, Associate at Winckworth Sherwood.
The rapid development of a number of coronavirus vaccines has offered us a sign of hope that the end of the current pandemic may be in sight. However, just as those who have been fortunate enough to receive the vaccine have been urged to continue exercising caution, employers will need to take care in the coming months given the potential pitfalls of managing a partially vaccinated workforce.
While the law currently requires workers to work from home unless it is not reasonably possible to do so, evidence of developing immunity and reductions in cases of the virus could lead to this position softening. At this point, employers may need to make some difficult practical judgments about how to reconcile their duties to ensure a safe working environment with their business needs and desire to return to normalcy. It seems unlikely that an immediate return to the pre-COVID norm will be possible – if even desirable – and so employers may find themselves tempted to organise a staggered return which prioritises those who have been vaccinated.
Before doing so, employers should be fully aware of the latest science, ideally as communicated and confirmed by official sources, in order to justify their proposed measures. In particular, we do not yet have a clear picture of the degree to which vaccination impacts transmission of the coronavirus and whether this varies according to the brand of vaccine used. Equally, those who are vaccinated do not necessarily have absolute protection against all COVID-19 symptoms. While the science appears to be developing rapidly given global research efforts, at present vaccination is not a guarantee of a safe working environment.
Employers will also have to be alert to the changing availability of the vaccine before taking measures which are specifically designed around it. In a widely-publicised move, one employer has signalled its intention to institute so-called ‘no-jab, no job’ employment contracts, accompanied by a substantial programme of private vaccinations for the workforce. However, private vaccinations are not currently available and, at least at present, employers will need to be mindful of both who will be prioritised for the vaccine and who may be excluded, particularly given the real risk of discrimination.
The Government’s approach to date has been to prioritise older age groups and care home residents. While more individuals within the working population should begin to receive the vaccine in the coming months, it seems likely that younger workers will generally remain a low priority. Therefore, any measures which specifically benefit those who have received a vaccine may well discriminate indirectly against younger staff.
There is legal scope to justify this discrimination, but it will almost inevitably require a good understanding of the prevailing science and employers should consider whether more even-handed alternatives can achieve the same aims. It may be difficult to justify inviting or requiring vaccinated employees to return to the workplace as a priority without considering whether employees’ preferences can first be accommodated (which could also be the more consultative approach to employee relations).
Moreover, the current official advice is that pregnant women should not be vaccinated unless they are at high risk and, if a woman becomes pregnant after their first dose of a vaccine, they should delay the second dose until their pregnancy is over (again, unless they are at high risk). While the vaccine is not necessarily considered unsafe for pregnant women, limited testing has been undertaken. Although the Equality Act 2010 does not prohibit ‘indirect maternity discrimination’, indirect sex discrimination is a potential risk if a vaccine-led return to the office disadvantages pregnant women. This may be easier to justify, as employers are under a legal duty to alter a pregnant woman’s working hours and conditions to remove any significant risk to mothers or their babies. However, employers will again need to maintain a close eye on the evolving guidance.
The next few months will hopefully herald further progress in efforts to combat the pandemic, but there is and will continue to be considerable uncertainty as to how that translates to working life. Although some may prefer to focus on the workplace of the future, employers will need to give real thought to the more immediate and potentially awkward transitional period which could begin in the coming months. As with almost every aspect of life at the moment, we are likely to have to constantly re-assess risk and be prepared for flexibility and change.