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Covid Update: mandatory vaccines, recent tribunal outcomes and working from home

16 Jun 2021

MANDATORY COVID JABS

Although formal government consultation is to be undertaken, it appears likely that the government is to make covid vaccinations mandatory for staff working in the health and social care  sector. It appears staff will be given a 16 week window in which to obtain a vaccination and they could be dismissed or redeployed if they refuse.

Whilst further details are required, particularly relating to the ramifications for those that refuse, making the vaccine mandatory could create numerous issues for employers particularly in a sector which often struggles to recruit. There is a clear risk of unfair dismissal and discrimination claims being pursed, particularly if redeployment isn’t a workable option. It will be interesting to see if the government does legislate to remove the rights of employees to pursue claims against their employers in these circumstances. Although it seems unlikely, if the government doesn’t take such steps, employers will have to face the fallout from any mandatory policy the government does introduce.

SICKNESS ABSENCE CASE

The Newcastle employment tribunal last week found that the dismissal of an employee who was seen drinking and smoking at the pub whilst off work ill was unfair. The employee had told his employer he had been “bad in bed all day with his chest” and was subsequently dismissed for “breach of trust and dishonesty”. The employment tribunal found that there was nothing in the employer’s disciplinary procedure prohibiting an employee from acting in this way and found that flaws in the disciplinary process meant the employer had fallen below the standard of a reasonable employer. The tribunal noted that if a fair process had been followed, there was still only a 25% chance that the employee would have been dismissed.

employment tribunal decisions related to Covid-19

Although not legally binding on other employment tribunals, the case serves as a useful reminder that policies and procedures need to be clear and carefully followed, and that an overly robust approach to sickness absence which risks encroaching on an employee’s personal life, may be deemed unreasonable. Employers should take full advice.

WORKING FROM HOME

In light of the four week delay to the final stage of lockdown easing, the government’s guidance continues to be ‘continue to work from home if you can’. Many employers are now switching to a hybrid of home and office based working. Employers are also seeing a rise in the number of flexible working requests being received where employees are requesting permanent home working. Employers should be mindful of following an appropriate flexible working procedure when dealing with such requests and also take into account any relevant personal circumstances of their employees such as health and childcare  issues to minimise the risk of claims being pursued. Please let us know if we can assist.

If you require help or any advice in relation to these matters, or any other employment issues, then please do not hesitate to get in touch with the team anytime with any questions.

You can also see all of our Covid updates here.