Croner-i explains how employers can deal with a situation where staff refuse to take in-house tests or the COVID-19 vaccine

Although several COVID-19 vaccines have been approved for use in the UK, the virus remains a threat, with many employers asking how they can help reduce the virus’s spread. Workplace COVID-19 testing and vaccine take-up are one solution but how can employers deal with staff refusals and what might make staff refuse in the first place?

Encouraging in-house COVID-19 testing

Employers whose staff have returned to work after lockdown may have already begun mass testing their employees to spot asymptomatic positive cases of COVID-19 and reduce the risk of spreading it to others.

Employers in the position to offer in-house testing may have started encouraging their employees to take regular tests when they are offered to them. The word ‘encourage’ is, however, emphasised here as it is unlikely that there will be a clause in employee contracts requiring them to be tested. To enforce it is therefore likely to be an unlawful change to contract terms and conditions.

Having said that, if enforcing in-house testing on staff is not advisable, staff can refuse to be tested if they do not want to be, perhaps preferring to test themselves at home. Some members of staff may find the testing process (taking throat and mouth swabs) to be excessively uncomfortable and others may feel it unnecessary if they are not experiencing any symptoms. In this case employers should attempt to reason with employees and put across the point that the implementation of in-house testing is a crucial to preventing asymptomatic cases from going undetected, resulting in the continued spread of the virus.

By having in-house testing on offer, employers can therefore do their part to ensure the health and safety of employees is safeguarded but this is made more difficult if employees are unreasonably refusing to be tested when offered.

Disciplinary action may then be necessary where any employee refuses to be tested and risks putting the health and safety of colleagues and customers at risk but this should be a last resort.

Managing vaccine refusal

One of the main questions employers are asking about vaccines is whether they can legally oblige their employees to take the vaccine before returning to work. As with testing, COVID-19 vaccines are not mandatory, except for care sector workers in England.

Where no mandatory requirement is in place, the most appropriate course of action for most employers is therefore to encourage staff to take the vaccine.

If employees refuse because they are not contractually obliged, employers should share information about the vaccine from official sources. This reduces the likelihood of them refusing the vaccine because fears prompted by false information.

As the vaccine can be seen as more medically invasive than testing, refusal can occur for many reasons which should not be disregarded, eg allergies, pregnancy, etc. Employers are therefore not advised to take disciplinary action against employees and doing this may mean employers risk facing claims of discrimination or unfair dismissal (including constructive unfair dismissal).

How a policy might help

To facilitate roll-out, employers can implement a COVID-19 testing and vaccine policy which employees should have easy access to. The policy should set out:

  • Why testing/vaccination at work are encouraged
  • Who will manage the testing process (third party/trained staff)
  • Where and how the testing will take place
  • How test results will be processed.

What to remember

In-house testing and the COVID-19 vaccine need to be handled with care. Although the actions employers take will be similar in both cases, it is important to look at them separately to ensure they are dealt with appropriately and are led by encouragement rather than enforcement.

Rapid or in-house testing and vaccines are not required by law and it is ultimately up to employers to encourage it. However, unless employers can clearly justify why mandating mass testing and requiring staff to be vaccinated is necessary, it should remain optional.

Enforcing testing and vaccinations in some cases, and disciplining employees who refuse to partake in others, could lead to costly constructive dismissal or even discrimination claims, unless such actions are justifiable. Discrimination may arise where employees have valid reasons for their refusal which are connected to a protected characteristic under the Equality Act 2010.

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