Bridge HR articles

We are all well aware of the legal requirement to self-isolate where people test positive for COVID-19; or where they are told to do so by NHS Test and Trace, or ‘pinged’ to do so by the NHS app – regardless of vaccination status, albeit that may change very soon, as we highlight below.

The Government has, at this time of writing, maintained its commitment to change this position from 16^th of August 2021 as follows:-

• Fully vaccinated individuals (and the under 18s) will no longer need to self-isolate if they are identified as a close contact of someone with COVID-19.
• To facilitate vaccination 18 year olds will be treated the same as those under 18 and thus, will be exempt from the self-isolation rule until six months after their 18^th birthday.

There are, as we all know, serious concerns around balancing the need for businesses to operate and the need to stem the spread of the virus…we expect more changes here should the numbers and vaccination strategy hold.

What about critical workers and self-isolation?

The exemption from self-isolation for critical workers has now applied since the 22^nd of July and can be summarised as follows:-

• It applies to workers and businesses that are not already registered and part of the workplace daily contact testing scheme (see below).
• It covers the following sectors: energy, civil nuclear, digital infrastructure, food production and supply, waste, water, veterinary, medicines, essential chemicals, essential transport, medicines, medical devices, clinical consumable supplies, emergency services, border control, essential defence outputs and local government and the funeral sector.
• Critical roles in other sectors may be raised and agreed separately.
• Also, workers who are at 14 days or more after their second vaccine and specifically named in a letter may, subject to a number of conditions, leave self-isolation to do their critical work and then return to self-isolate. Employers can contact the government department relevant to them to apply for this exemption.

The daily contact testing scheme

On 3^rd of August the Government guidance was updated to include the new daily contact testing which is available to workplaces that are approved to take part in the scheme which are covered in the initial wave of this scheme; presently in essential services such as healthcare, transport, defence, prisons, waste and energy. The scheme may well be rolled out further so do watch this space.

When contacted to self-isolate, having come into contact with someone outside their household, these employees at the approved sites can choose to undergo daily contact testing instead of self-isolation – the workers must take lateral flow tests at an approved testing site within the employers site and each day for seven days or they can self-isolate at home on any day they are not tested. Where the test is negative, they can continue to work, where it is positive they must then self-isolate and obtain a PCR test. The scheme is intended to continue after 16^th of August at those approved employers sites for those who remain unvaccinated.  

What about NHS and social care?

From 19^th of July double vaccinated frontline NHS and Social Care workers in England who are informed or ‘pinged’ to self-isolate are able to continue to attend work after having a PCR test and also whilst taking daily lateral flow tests, but this must be in exceptional circumstances.

Will vaccination become mandatory?

So far only workers in registered homes (from 11^th of November 2021 no one may enter without proof of a vaccination) are mandated for the COVID-19 vaccine. Notwithstanding that the Government have said that it will be consulting on whether or not to extend the mandate to workers in wider health and social care.

Specific dates and timelines are in place for registered homes to follow to ensure staff are vaccinated in advance of this date – please contact us for more information if needed.

Can employers demand vaccination – ‘no jab no job’

As noted at present only regulated care homes can do this but they must still assess each case carefully given the myriad of risks posed by forcing a vaccination onto individuals who may have specific and genuine objections that could create potential claims.

The ACAS guidance on the subject does presently promote employers taking positive action first to encourage staff to go get the jab, for example, things like paid time off to do so.

Where the jab is required to do the job, for example where international travel is required, then it will be much easier to consult to secure agreement with the employee to take the jab, if they refuse then unless that refusal attracts some other wider protection for example, due to a compromised immune system (which could create clear discrimination and safety related claims) then unless the job has a clear requirement for the jab it will be much, much, harder to force the issue with the imposition of a termination or redeployment.

Simply because the Government has not implemented a wider mandate for vaccines beyond care homes, without such law underpinning an employer’s requirement for a vaccination it will be much more difficult to justify it unless the work puts others at risk.

The following points should be considered carefully when considering an employer imposed vaccine requirement for employment that would treat present workers or applicants differently based on their vaccination status:-

• vaccination is not suitable for all – specific and genuine vulnerabilities may excuse a lack of vaccine and further may be the basis for a discrimination claim
• as vaccinations cannot be obtained privately and because priority for vaccination is allocated based on age, where a worker is merely awaiting a jab, were you to refuse work due to lack of vaccination, then in that case there could well be a both direct and indirect age discrimination claim
• it could create Human Rights issues too – breaching Articles 8 and 9 of the ECHR
• the imposition of the requirement without full consultation; even a well made out commercial justification may well create a fundamental breach of contract in law i.e. the imposition of the requirement is held unreasonable and thus, creates a claim for constructive unfair dismissal for those that refuse
• should an employee take the vaccination at the direction of the employer and merely to keep their job and they then suffer an adverse reaction there could in that case be a personal injury claim against the employer
• finally, health and safety may well be the justification, but it still remains unclear how effective the vaccine is in reducing transmissibility, thus, it may not be enough to justify such a self-imposed vaccination mandate coupled with the possible introduction of daily testing over self-isolation or even reduction in self-isolation requirements; it may become more difficult to justify such a mandate without government legislating for it in your sector

On balance it appears that positive incentives to vaccinate may well work better with much less risk, time and disruption and of course the government is still considering whether or not to extend the mandatory vaccination requirements.  

For more information contact your team contact, call the office on 0194 360 295 or add your comment and queries below and a member of the team will get back to you.