Proceed with care if employee refuses vaccine, says advisor

What an employer should so if the vaccine is refused

Coach and bus operators should proceed with care when considering employees’ unwillingness to receive the COVID-19 vaccine, a business advisory specialist has said.

Dialogue around employers’ approach to vaccination was generated by comments from Unilever Chief Executive Alan Jope in January. Unilever will not make vaccination mandatory for staff, but will encourage it. In public transport, union RMT has called for workers to be among those prioritised for vaccination.

Croner-i points out that the Public Heath (Control of Disease) Act 1984 provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination. They are thus free to decide whether they receive the COVID-19 vaccine.

Think hard about actions if an employees has refused the vaccine

Depending on the type of work involved, Croner-i adds that some employers will in fact be justified in contractually obliging employees to be vaccinated. That could be under circumstances where the risk of spreading infection to vulnerable people “is sufficiently high to outweigh the freedom of choice,” it continues.

Such an approach is likely to mean a change to an employee’s terms and conditions. If consent for that is not forthcoming, imposing a requirement to receive the vaccine comes with employment law risks. Operators should “proceed with caution” in that situation, Croner-i says.

Flexibility in providing time off for vaccination appointments – or at least ensuring that the employee is not disadvantaged by taking the necessary leave – may help with uptake. However, there is no legal requirement for special rules. Operators can use their usual arrangements for accommodating medical appointments.

Engage with staff if an employee will not accept vaccine

If an employee still refuses vaccination and there is no appetite for obliging them contractually, Croner-i advises that caution should be exercised before considering possibly reducing the number of hours they work in favour of staff who have been treated.

Vaccine for public transport employees
Union RMT has called for public transport workers to be prioritised for vaccination – but what should an employer do if they refuse to take it?

It notes that where an employee has refused vaccination, it is imperative for the employer to identify the real reason for doing so

If refusal is related to a protected characteristic, such as disability or religion, the employee is protected against less favourable treatment if action is taken against them.

“Operators may be able to justify the action, but this is a tricky legal test to pass,” Croner-i continues. “It is advisable to first explore alternatives, such as regular COVID-19 testing.”

It’s also important to note that if an employee refuses vaccination, and then contracts COVID-19 and is absent, the employer’s normal rules on sick pay continue to apply. That is the case however the absence comes about, unless a process is undertaken to change those rules.

“This means that contractual sick pay offered by the employer in excess of statutory sick pay would need to be honoured according to current rules, which may already include qualifying criteria,” says Croner-i.

Reasonable belief required if work is refused by staff

The advisory firm has also offered guidance on a possible situation that may develop involving some younger coach drivers who have not yet been called for vaccination, but who are willing to receive it when they become eligible.

Should they be allocated work involving the carriage of a group of passengers that have been vaccinated and may be less willing to observe precautions to prevent spread, they may refuse those duties. But there is a major caveat. To do so, they must have a reasonable belief, and be able to demonstrate, that the work “poses a serious and imminent danger to them that they could not reasonably have been expected to avert,” says Croner-i.

Being able to demonstrate that belief is key, it continues. Operators are advised to proactively consider how they could dispel any such concern among drivers. That may involve ensuring that health and safety precautions are maintained by all concerned throughout the journey.

Croner-i also sounds a wider warning that it is likely that social distancing and additional safety measures will likely remain in place “for some time yet.” That is because there is still no concrete evidence that vaccines prevent transmission of COVID-19.

Operators have little concern about employers refusing vaccination

Two coach operators that briefly spoke to routeone about their views on employees’ willingness to receive the vaccine suggest that there is little major concern. One says that its drivers are very keen to return to work after almost a year of uncertainty, and believes that will define their approach to vaccination.

Another has not yet discussed the topic with staff and is unsure of the legal position around it. A bus operator believes that continued use of precautions against the virus, including cleaning and screens, will mitigate concerns of drivers who do not wish to be vaccinated.