Expert warns of legal claims from segregating unvaccinated workers

Kate Palmer from HR experts Peninsula advises employers thinking about keeping vaccinated and unvaccinated staff apart to be wary of possible discrimination claims.

Book with title employment tribunal on a table.

 

An estimated 92.5% of the adult population in the UK tested positive for Covid-19 antibodies during the first week of November 2021, largely due to the fact that over 50 million of them have had at least one coronavirus vaccine.

However, the topic of vaccinations can be a divisive one and different countries are dealing with it in different ways. For instance, New Zealand has introduced a new traffic light system to boost vaccination rates. Under the scheme people who are vaccinated will have a high level of freedom while those who haven’t had the jab will be banned from many activities when Covid cases are high. Italy has also banned unvaccinated people from planes and trains.

Is this likely to translate to the workplace?

Kate Palmer, HR Advice & Consultancy Director at HR experts Peninsula, says she understands employers’ concerns about vaccination rates, but explains segregation in the workplace could become a one-way ticket to a discrimination claim.

“Segregating workforces – regardless of cause or reasoning – will always pose some element of risk to employers. Generally, treating employees differently increases the chances of indirect and direct discrimination, constructive dismissal and/or unfair dismissal claims being raised,” she says.

“We have received calls from businesses asking if they could have separate working areas for vaccinated and unvaccinated employees. Whilst this might initially seem like an effective way of controlling spread of the virus, in practice, it’s more likely to lead to an increased number of vulnerable individuals who are medically exempt from having the vaccine being in close contact with each other.”

She adds that some employees who are medically exempt but have chosen not to disclose underlying health conditions to colleagues, may also feel like their separation from the wider workforce highlights their medical issues, thereby breaching the implied term of trust and confidence in the employment relationship.

“Employers should also keep in mind that any information relating to an employee’s health is protected information for which they could risk GDPR-related claims for sharing without express consent,” says Palmer.

She adds: “Similarly, by creating a divide, employees may worry over where the line is drawn – for example, they may raise concerns about being overlooked for promotion opportunities, not given the same training or mentoring, or missing out on socialising and networking. In situations whereby an employee has reasonable grounds for refusing vaccination, such as their religious beliefs, pregnancy or other, employers may be indirectly discriminatory if they place them at a detriment for not having the vaccine.”

She sums up: “In order to both protect your business and avoid tribunal claims, I would say it’s always best to keep all employees together, but ensure Covid-secure measures are in place and resources are available to encourage those employees who can get the vaccine to do so.”

Pregnancy

When it comes to pregnancy, the official advice is to get vaccinated. There is a lot of misinformation about the impact on pregnant women which has created anxiety and lower vaccination levels, leading to several pregnant women ending up in ICU with the virus or even dying.

However, the official guidance allows pregnant employees to declare a short-term exemption from getting the Covid vaccine. This can be evidenced through their MATB1 form, but exemption expires 16 weeks post-partum. The exemption is available in recognition of the hesitancy expectant mothers might have. There are no other qualifying criteria pregnant employees have to meet and they do not need to provide any evidence other than their MATB1 form to their employers.

Whilst pregnant employees can take up to 52 weeks’ maternity leave, they must be able to provide evidence of full vaccination, or permanent medical exemption, in order to complete any Keeping In Touch days or return to work after the 16-week grace period.

Care home workers

With the Government ruling that it is compulsory to be vaccinated in care home settings – something that will extend to frontline NHS workers next year – the situation is more complicated for pregnant employees. New mums working in the care service who are unvaccinated are at risk of being redeployed or dismissed from their care home roles once their short-term exemption expires. Nevertheless, a full consultation process, including in-depth evaluation of alternative options, should be completed before any action is taken by employers, says Palmer.

Employees with a permanent medical exemption, who can evidence this through the official NHS Covid Pass System, can continue their roles inside a care home. Dismissing or redeploying an individual with an exemption may lead to unfair dismissal, constructive dismissal or discrimination claims, says Palmer. However, they will still be expected to comply with all other Covid-secure measures, such as regular lateral flow testing, wearing full PPE, hand sanitising etc.

Palmer adds: “It must also be noted that, for now, we can only assume that the rules and processes for staff under the Government’s mandatory vaccine proposals in wider health and social care settings will mimic what was in place for CQC-regulated care homes in England. However, there has been increased emphasis placed on the benefits to pregnant employees getting the vaccine, so the exemption process for them may change when the new regulations are brought into force next year. The Royal College of Obstetricians, Royal College of Midwives and the UK Tetralogy Service consider the Covid vaccine to be safe and recommend pregnant women it.”



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