The ACAS website acas.org.uk is a useful starting point for employers and employees seeking to navigate the choppy waters around workplace testing and vaccination.
The webpage on testing sets out suggested good practice in relation to workplace testing. ACAS recommend that employers should agree a testing policy with staff. They flag potential discussion issues including the procedure for testing, communication of results, protection of sensitive data and appropriate pay for those who are required to self-isolate. They recommend that the decisions reached should be put in writing and communicated to staff.
All of this is very sensible. More problematic is their subsequent suggestion that employers could use the Furlough scheme to cover pay for those who test positive. This advice is well-intentioned as the prospect of lost income is undoubtedly one of the main reasons why staff may be reluctant to agree to testing.
However it also appears to contradict the government’s published guidance that ‘short term illness or self-isolation should not be a consideration in deciding whether to furlough you’. A better approach is the suggested alternatives proposed by ACAS to offer full pay for those testing positive and an agreement not to count COVID absence towards sickness absence triggers.
The webpage on vaccination provides suggestions as to how employers can encourage staff to get a vaccine. This includes measures such as paid time off to attend vaccination appointments and the offer of full pay for those who are ill with vaccination side effects.
The guidance also touches on the difficult area of whether and how employers can require staff to be vaccinated. It suggests that in most circumstances it will be not be appropriate to make vaccination mandatory. Where employers attach a particular importance to vaccination they should firstly work with staff and their representatives to agree a vaccination policy. Individual issues should then be resolved, where possible, through informal dialogue.
The guidance avoids any definite conclusions around whether and how employers can pursue a mandatory vaccination policy or when an employee’s refusal to be vaccinated may be unreasonable. It does suggest that irreconcilable differences may lead to formal grievance and disciplinary proceedings but avoids any further comment.
This is probably wise. The issues surrounding COVID testing and vaccination are complex and so far largely untested by the courts. Any employers considering a blanket rule around are advised to tread very carefully and with the benefit of legal advice.
ACAS: Working safely during coronavirus (updated 26 February 2021).
This blog is by Mark Alaszewski, Solicitor at didlaw
