“I have a member of staff who is unvaccinated and now other members of staff are complaining and refusing to work with them what can I do?"

How should I approach this?

1. Investigate any concerns that are raised with the employees. Are there specific behaviours that are causing concern such as social distancing or mask wear etc… It may be that instituting a handwashing policy or social distancing will not only deal with the issues but result in a safer workplace for everyone.
2. Discuss the issue with the non-vaccinated employee to understand why an employee remains unvaccinated. There are generally 3 reasons why someone may remain unvaccinated
   1. they cannot be vaccinated due to medical reasons- if this is the case then as an employer you will have a duty to make reasonable adjustments, including social distancing, mask wearing etc…
   2. they are hesitant to be vaccinated- if this is the case then as an employer you may want to consider providing further information regarding vaccines to all staff. These can generally be found with your local NHS services, and we include a few links at the end of this article, and
   3. they are refusing vaccination on religious or philosophical grounds - genuinely held religious or philosophical beliefs are protected by the Equalities Act 2010, and discrimination based on these will get you in trouble. That said, the caselaw here is complicated and it is far from certain that anti-vax will be protected. If this is an issue, we strongly advise contacting the RMI advice line to advice and assistance.
3. Put a clear Covid-19 vaccination and/or workplace safety policy in place and monitor it.

Can I require the employee to take a vaccination?

Under the Health and Safety at Work Act 1974, employers have a duty to ensure the health and safety of their employees so far as is reasonably practicable. It should also be remembered that Covid is a reportable disease under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (known as RIDDOR). Both of these will give employers justification for encouraging vaccination as well as implementing controls within the workplace.

What is often overlooked is that the Health and Safety at Work Act 1974 also puts duties on employees to exercise reasonable care and skill in the relationship with colleagues and the employer including

• A duty to take steps to adequately protect the health and safety of themselves and colleagues at work
• A duty not to disrupt or interfere with anything put in place to aid in health and safety at work

Just like employers, employees who fail to comply with their obligations can also be disciplined and subject to fines and convictions if they are found in breach of the act (although this is less likely to be enforced).

Unfortunately, outside of the healthcare sector the government has not made the vaccination compulsory. As such, there are a number of reasons why an employee may legitimately refuse a vaccine, for example, due to medical or religious reasons.

Requiring employees to be vaccinated will put the employer in a difficult position, both legally and in terms of employee relations. There are arguments that can be used to enable employers to require employees to be vaccinated and to discipline and dismiss them if they refuse. However, these have not been fully tested in the tribunals and courts and as such carry a significant risk of unfair dismissal and discrimination. We do not advise this course of action at this time as becoming a test case can be time consuming and expensive.

What are my alternatives?

Whilst a powerful tool, the vaccine is only one aspect of controlling the virus. Whether you have an issue or not we continue to advise members to regularly carry out a Covid specific risk assessments of their business. Even with a vaccinated workforce measures such as ventilation, handwashing, social distancing and the use of PPE continue to be relevant within the workplace, homeworking should be considered where practical.

Consideration should be given to whether a testing procedure can be introduced in order to monitor employees. This could include temperature testing and the use of lateral flow tests etc…

Where there continues to be a problem, consideration could be given to whether temporary adjustments can be made to the employees roles to reduce the risks to other staff and customers. This can include staggering start times to avoid contact with employees, changes to the workplace and to working practices to limit the risk of infections and ultimately reduced working hours. However, care will need to be taken as unless the employee has been advised by a doctor to isolate for medical reasons it is likely that they will remain entitled to full pay even if you send them home.

Conclusions

For now, employers should act cautiously in the mandating of a Covid-19 vaccination for the workforce. In the majority of cases, they may have to make the best of regular testing (not without its own difficulties), protective measures such as screening and sanitising stations, temperature checks and effective compliance with face coverings and social distancing rules. We would not advise going any further than this without significant and detailed legal advice.

Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

Motor Industry Legal Services

Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.