| HR & EMPLOYMENT LAW
Jackie le Poidevin, Editor-in-Chief, HR Adviser |
‘No Jab, No Job’: Can You Require Staff to have the Vaccine?
Interest in whether employers can force staff to be vaccinated against Covid-19 has exploded after Charlie Mullins, the founder of Pimlico Plumbers, revealed last week that he was planning ‘no vaccine, no job’ contracts for his staff. If you’re considering requiring staff to get immunised, here are the key issues you need to think about first.
‘When we go off to Africa and Caribbean countries, we have to have a jab for malaria — we don’t think about it, we just do it’, Mullins said in an interview with City AM. ‘We won’t be employing people in the future unless they’ve got a vaccine. If they want to sit at home and not lead a normal life then, don’t have a vaccine.’
The company’s lawyers were said to be rewriting contracts for new starters and anyone without proof of vaccination would be rejected for a job interview. There were also reports that the contracts of existing staff could be amended and, if they did not want the jab, the firm would decide on a case-by-case basis whether to retain them.
If you’re thinking of following in Mullins’ footsteps, these are 4 questions to ask yourself:
- How Big is Your Appetite for Risk?
Mullins isn’t afraid of a fight. He’s already faced a Supreme Court battle on one contentious area of the law: whether supposedly self-employed contractors are entitled to worker rights. He has said that he’s willing to go to the Supreme Court over vaccine refusals as well.
There have been no claims by employees who have been told to get immunised against diseases such as cholera or yellow fever when travelling for work. However, this is suddenly a high-profile issue and there’s certainly a risk an individual might try to claim a breach of their human rights, discrimination or unfair dismissal.
Even if you’re ultimately vindicated, you’ll have to go through the trouble and expense of fighting that claim, so you should think carefully whether you’re willing to do that.
- What’s the Mood of Your Service Users or Clients and Staff?
Pimlico Plumbers offer a service to customers in their own home. Mullins clearly believes it will be good for business to send a plumber who has had the jab, even though there’s no clear evidence yet that vaccination stops people transmitting the virus. He has said that staff approve of his policy – and most will doubtless feel safer entering strangers’ homes if they’ve been immunised. So, Mullins has presumably decided the business benefits outweigh the risk of a minority of staff refusing to have the vaccine.
On the other hand, a fifth of staff in one major care home group have reportedly refused the offer of a Covid jab, despite being at high risk from the virus. This has led the National Care Association to seek legal advice on whether staff can be forced to have the vaccine. And according to SAGE, 72% of Black people are hesitant about having the vaccine – so it’s not the case that you’ll only face reluctance (and claims) from a few anti-vaxxers.
- Would Instructing Staff to Get the Vaccine be Reasonable?
Mullins is considering changing contracts, which would require consent from existing employees. However, it’s likely that your disciplinary policies already explicitly allow you to dismiss employees who refuse to obey a reasonable management instruction. Before relying on this provision, you should bear in mind that:
- It wouldn’t be reasonable to instruct certain people to have the vaccine. For example, some people with severe allergies cannot have the vaccine and pregnant women – including those planning a pregnancy within 3 months of the first dose – are not currently being offered it unless they are in a high-risk group. There would be a high risk of disability and pregnancy-related discrimination claims if you dismiss such employees for not following an instruction to have the vaccine.
- Whether it would be reasonable to instruct other employees to have the jab may depend on whether they are going to come into contact with patients, service users, customers and so on.
- If it is shown that the vaccine reduces the transmission of Covid-19 to others, that may make it easier to require staff to have the jab. In this case, a refusal may put other people in danger (those waiting for their first or second dose or who can’t be vaccinated).
- If vaccinated staff can pass on the virus, you may still be able to justify your policy because you need to keep your business running. If you run a nursery school or care home, for example, unvaccinated staff are more likely to fall ill and be unable to carry out the service you’re paying them to perform.
- Are there Alternatives to Coercion?
With most of the population still waiting for their first dose, the safest approach is to use the time to educate staff on the benefits of vaccination and the increased transmission risk of the new Covid variant. You can also see what steps other employers are taking. In the event of a dispute, you should listen carefully to the employee’s concerns and consider whether other measures, such as permanent home working, are possible before you threaten dismissal.
| PAYROLL
Sarah Bradford, Editor-in-Chief, Pay & Benefits Adviser |
How to Calculate SSP for Employees Absent Due to Coronavirus
With high cases and numbers in hospital as a result of Covid-19 at record levels, more and more employers may be faced with the task of calculating SSP for employees who are absent from work, either because they themselves have Coronavirus or because they are self-isolating because they have been in contact with someone who does. While most employers are familiar with SSP and may be used to calculating it, some relaxations in the rules mean that the calculation of SSP for Coronavirus absences is not the same as for other absences.
What is Different?
The relaxations allow employees who are absent from work due to a Coronavirus absence to receive SSP from the first qualifying day of their absence – they do not need to serve the usual 3 waiting days before being paid their first day of SSP.
However, the remaining qualifying conditions remain and must be met:
- The worker is classed as an employee and has done some work for the employer before going sick.
- The employee earns on average at least £120 per week.
- A period of incapacity for work has been established.
To establish a period of incapacity for work (PIW), the employee must be ill or self-isolating for at least 4 days (including non-working days). As the self-isolation periods for those with Covid-19 and those who have been in contact with someone with Covid-19 are longer than this, a PIW should exist for Covid-19 absences.
Care must be taken with employees who are required to self-isolate for 3 days prior to surgery as this in itself will not create a PIW. However, taking into account the day of the surgery and any days off to recover should mean that a PIW exists.
Once a PIW has been established, the employer can pay SSP from the first day of the absence.
How Much Do We Pay?
SSP is paid only for qualifying days. These are the days that an employee normally works.
For 2020/21, the weekly rate of SSP is £95.85. The daily rate depends on the number of days that the employee works in the week (the number of qualifying days). The way that SSP works means that an employee working 1 day a week receives the same amount if they are off sick for a week as an employee working 6 days a week who is off for a week.
The daily rates are shown below.
1 qualifying day in the week – Daily rate is £95.85
2 qualifying days in the week – Daily rate is £47.925
3 qualifying days in the week – Daily rate is £31.95
4 qualifying days in the week – Daily rate is £23.9625
5 qualifying days in the week – Daily rate is £19.17
6 qualifying days in the week – Daily rate is £15.975
7 qualifying days in the week – Daily rate is £13.6929
Example:
- An employee works Tuesday to Friday each week. There are 4 qualifying days in the week.
- The employee is told on Sunday 17 January by Track and Trace that she must self-isolate for 10 days. She returns to work on Wednesday 27 January.
- The first 4 days of isolation – 17, 18, 19 and 20 January form a PIW.
- She is absent from work for 4 qualifying days in the week commencing 18 January and for 1 day in the week commencing 25 January.
- She is entitled to five days SSP at the daily rate of £23.9625, a total of £119.81.
Don’t Use the HMRC Calculator!
Although HMRC produce an SSP calculator which is available on the Gov.uk website and which can be used to calculate SSP, the calculator cannot be used for Coronavirus absences due to the relaxation in the rules. The SSP must be worked out manually, or using a software package that allows for Coronavirus absences.
| HEALTH & SAFETY
Paul Smith, Editor-in-Chief, Health & Safety Adviser |
Take the Correct Action when an Employee Tests Positive
We know from our Ask the Experts Helpdesk that there’s a basic question that still causes a lot of confusion to managers, directors and health and safety advisers: what do you do when you discover that an employee has tested positive for Covid-19? We talk you through the latest guidance and show how the right answer may not be quite what you expect.
One of your employees goes off sick. They had a high temperature so you advised them to get a Covid test. That’s now come back positive. The individual’s team and other contacts are now asking if they should self-isolate.
You might think that the correct answer is to identify those people with whom the individual had close or prolonged contact and then tell them to self-isolate too. To the surprise of many of our readers, however, that is not what the guidance says.
The key message is to let the NHS Test and Trace people do the contact tracking instead. What this means in practice is that people can keep working normally, unless they are contacted by Test and Trace – or they need to self-isolate for another reason.
Because this issue is causing so much confusion, we thought it would be useful to set out the full list of situations in which employees must self-isolate. The 7 key cases are as follows:
- They have symptoms: these are fever (a high temperature); a new, continuous cough; a loss or change to their sense of smell or taste. Anyone with one or more of these symptoms should (a) stay away from work; (b) self-isolate and (c) get a test. The guidance adds that people in the individual’s household should also self-isolate until the test result is known. So should members of any support bubble your employee is in: they should stay at home if the individual has been in close contact with them, either since their symptoms began or during the 48 hours before they started.
- Test result: anyone tested should then follow the advice given, which will typically be (test positive) continue to self-isolate or (test negative) return to work.
- Household member has symptoms or has tested positive: employees should self-isolate if someone they live with has symptoms, or tests positive.
- Support bubble member has symptoms: employees should self-isolate, but only if they have been in close contact with the bubble member since their symptoms started or during the 48 hours before they started.
- Support bubble member tests positive: employees should self-isolate, but only if they have been in close contact with the bubble member since they had the test or in the 48 hours before their test.
- They’re told they have been in contact with someone who tested positive: if people are contacted either by Test and Trace or the NHS Covid app, they should self-isolate. The period is 10 days starting with the last day they were in contact with the person who has Covid-19.
- Travel outside the UK: people need to self-isolate for 10 days after returning from abroad (there are exemptions for people such as bus, coach and lorry drivers).
Keep Information for Test and Trace
If Test and Trace contacts you after an employee tests positive, you should be ready to provide details of anyone with whom they have been in close contact. It’s therefore even more important than usual to keep records of shifts, assignments and work patterns, as well as of any visitor or client the individual has met. ‘Close contacts’ include where the person has:
-
- Face-to-face contact including a face-to-face conversation within 1 metre.
- Been within 1 metre for one minute or longer without face-to-face contact.
- Been within 2 metres of someone for more than 15 minutes (either as a one-off contact, or added up together over 1 day).
- Travelled in the same vehicle or a plane.
An interaction through a Perspex (or equivalent) screen is not considered to be a close contact, as long as there has been no other contacts (such as those in the list above). The guidance encourages businesses and venues to display official NHS QR code posters if they have indoor areas where individuals are likely to congregate or sit-down in close to others: people can then check in quickly and easily with the NHS app. Our advice it to put up multiple copies to avoid queues and bunching!