The rapid development of several 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 a jab 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 employees 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, organisations may need to make some difficult practical judgements on 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 – even if desirable – and so employers may find themselves tempted to organise a staggered return that prioritises those who have been vaccinated. Before doing so, businesses should be fully aware of the latest science, ideally as communicated and confirmed by official sources, to justify their proposed measures. In particular, we do not yet have a clear picture of the degree to which vaccination impacts the transmission of coronavirus and whether this varies depending on the brand. Equally, those who are vaccinated do not necessarily have absolute protection against all Covid 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 that are specifically designed around it. In a widely publicised move, one company has signalled its intention to institute the 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 that 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 businesses should consider whether more even-handed alternatives can achieve the same aims. It may be difficult to justify inviting or requiring vaccinated staff 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 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 that could begin in the coming months. As with almost every aspect of life at the moment, we are likely to have to constantly reassess risk and be prepared for flexibility and change.
Daniel Parker is an associate in the employment team at Winckworth Sherwood