We are almost 12 months into the coronavirus pandemic and whilst great strides have been made by way of treating those who are struck down with the virus and with the approval of various forms of vaccine, we still appear to be some way from returning to a ‘normal’ way of life.
Given this is the first global pandemic affecting the UK in modern times, as legal advisers we do not have the benefit of relying on case law to help us shape our interpretation of the guidance out there, which incidentally is changing all the time.
What we are seeing frequently here at Avensure are the type of inevitable queries from our clients where the health and safety requirements and public health guidance appears to cause a cross over or conflict with established employment law and best practice.
In this article we shine the spotlight on just some of these issues.
1)PPE versus public health guidance on face coverings
The issue here relates to language which may be misleading.
GOV.UK and The Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020, defines PPE (Personal Protective Equipment) as something which ‘protects wearers against hazards and risks, such as surgical masks or respirators used in medical and industrial settings’.
It defines face coverings as something ‘largely intended to protect others, not the wearer, against the spread of infection because they cover the nose and mouth, which are the main confirmed sources of transmission of virus that causes coronavirus infection (COVID-19)’.
This wording is critical when issuing instructions to workers and drafting policies because there are clear regulatory differences. For example, surgical face masks must meet Medical Device Regulations and are intended to protect patients during surgical and medical situations. Face masks are to protect the wearer but whilst they are not medical devices, they do need to adhere to PPE regulations.
Face coverings on the other hand are not subject to regulations other than having to meet General Product Safety Regulations if on sale to the public. Face coverings can be anything from a bandana or scarf to something the wearer has made themselves. It is a face covering which must cover the nose and mouth which is referred to in the public health guidance within the context of reducing the spread of COVID-19.
It may seem like a minor point but when you break it down this is where the potential for confusion arises. Not to mention trying to hold your staff accountable for refusing to wear a face mask, which is an item of PPE, when it is only a face covering that is required.
2) Protection from detriment due to citing H&S concerns versus ‘unreasonably’ staying away from work.
We are faced with more and more situations where employees are refusing to work due to COVID-19, more likely due to new and more infectious strains being identified and the number of deaths sadly being at record highs.
If an employee were to refuse to work on the grounds that they believe it is unsafe to do so, the perception of ‘imminent danger’ may be enough for those concerns, whether raised directly with the employer or the HSE, to constitute a protected disclosure (whistleblowing) AND protection from being automatically unfairly dismissed for raising those concerns.
These are unprecedented times and H&S complaints have not traditionally tended to focus on global pandemics. So, under normal circumstances where an employee cites a danger or risk in the workplace, the employer, having sought appropriate advice from a H&S expert, such as carrying out risk assessments and taking all necessary steps to remove the identified risk- would usually be able to instruct the employee to return to work.
However, whilst there are rules and specific guidance as to making your premises COVID-secure, the virus is still out there, so the risk can never be entirely removed. So, the risk in taking action to possibly terminate someone’s employment or suspend pay for unauthorised absence, may still trigger protection from detriment as a whistle-blower and may carry the risk of an automatic unfair dismissal for citing H&S concerns.
3) Care Sector- Voluntary vaccine programme versus a duty of care to vulnerable service users/residents.
The vaccine is the best news yet as far as the pandemic is concerned but the roll-out seems to be taking its time.
The Government have not introduced a mandatory vaccine programme and nor are they likely to. This is because the ethical and legal implications of doing this are staggering, so instead people are ‘encouraged’ to have the vaccine.
This leads to the inevitable situation of people refusing to have the vaccine but by refusing to have the COVID-19 vaccination are care workers, in the event they contracted COVID-19, heightening the risk of transmission from the employee to the service user/resident, even if the service user has been vaccinated? Also, if the employee is employed as a Carer for vulnerable persons does this duty to protect that vulnerable person extend to the employer being able to insist they get the vaccine? The short answer to this is we don’t know and ultimately, we hope that the medical experts and regulatory bodies such as the CQC will provide more steer on this.
There are of course many reasons why some people may not want the vaccine and it is perhaps a little unfair to view them all as conspiracy theory-crazed anti-vaxxers. Instead, they may be allergic to the vaccine and have been told they cannot have it, or they may have a long-standing severe anxiety disorder, or they may be genuinely afraid. Having said that, it is understandable that the care sector will be very concerned and want everyone vaccinated without exception.
So, what can be done?
Here employers will look to their H&S procedures or indeed their employee handbooks and note that placing the health and safety of yourself, your co-workers and service users/clients amounts to an allegation of gross misconduct and decide that is where they are going to go. So, we are faced then with summarily dismissing someone for not having a voluntary vaccine and you can see the problem immediately.
This is where H&S and employment law are going to butt heads in a big way over the coming months i.e., duty to protect vulnerable service users versus unfair dismissal.
The press is not helping of course. This week saw the breaking news that Charlie Mullins, CEO of Pimlico Plumbers, was amending his contracts for existing staff, making it mandatory and hence a dismissible offence not to have the vaccine. It turns out that this is not what is being proposed at all, instead he is proposing to only hire new starters who have had the vaccine.
This proposal is still fraught with legal issues but the clickbait and scaremongering potential in this area is going to be considerable and even more likely to push employees into being more resistant to having the vaccine. Not helpful.
Again, there cannot be a one size fits all approach to this. It may be that we are getting a little too far ahead of ourselves and really the best way of handling this will be to simply carry on doing what we are doing now, i.e., maintain the use of face coverings and social distancing for those who do not or cannot be vaccinated.
In summary, it is imperative, as always, that each case is assessed on its own merits and it will of course require the involvement of both Employment Law expertise and H&S expertise. Given the pandemic is not going away any time soon, there isn’t really a choice between having a HR/Employment Law service or H&S- you need both!
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