BUSINESS HELPDESK


HELP DESK


A SAFE WAY FORWARD


With the Roadmap for easing lockdown restrictions now in place, we can begin to plan for life post-pandemic. The BMF and their HR experts, Halborns have timely advice on workplace testing and vaccinations for employees.


AS WE CAREFULLY move out of the latest lockdown measures, Workplace testing and the vaccination programme will be vital to contain the spread of the virus and employers have an important role to play to ensure their success.


Free flow lateral tests, and the training to use them, are currently available free of charge for businesses in England employing more than 50 people. Importantly, the employees do not have to work at one site but can be spread across several locations. The BMF is encouraging merchants to take advantage of the free scheme, which continues to the end of June. However, those wishing to do so must register and apply for their test kits from the Government website (www.gov. uk) by 31 March.


Following their presentation at February’s BMF HR Forum, Halborns, who provide the BMF Intelligent Employment Plus service, compiled a guidance note for BMF members explaining the employment law framework that applies to coronavirus vaccinations. A summary of that advice follows.


Encourage, don’t require


While merchants may encourage employees to have the vaccination, they cannot require them to do so.


Current government guidance is that it will be a matter of individual choice whether to be vaccinated. Any requirement by employers to do so is likely to create significant risks of discrimination claims from those unable to have the vaccine due to certain medical conditions, allergies or pregnancy, or unwilling to do so due to religious


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or philosophical beliefs. Furthermore, employees could claim that asking them to have the vaccine is a breach of the implied duty of trust and confidence and resign and bring a constructive unfair dismissal claim against you.


Another thing to consider is that there may be complications for employees who are required to take the vaccine - they could try to bring claims against you in respect of those health complications in the future. Reputationally you could attract negative press and be criticised for forcing employees to be vaccinated.


Nor can you treat vaccinated and non-vaccinated employees differently. For example, requiring them to work from home because they can’t or won’t have a vaccine would carry a risk of a successful discrimination claim. To defend a claim you’d have to show that treating these employees differently was objectively justified and it’s not


clear that you’d be able to do so given the fact that having a vaccine isn’t compulsory. When it comes to recruitment, a “no jab, no job” policy must be avoided. The legal analysis is largely the same as for employees and you risk discrimination claims from applicants if you try to enforce this.


A more constructive approach is to encourage employee participation by communicating the benefits of being vaccinated. As well as sharing Public Health England materials with employees, you can take other direct steps to promote a positive message.


For example:


• Ensure employees know that they will have paid time-off to receive the vaccine.


• Many people are not registered with their local GP – encourage employees who are not registered to do so.


• Lead by example – e.g. record a video of the leadership team obtaining their vaccine.


• Be clear on your purpose – share with your employees why getting the vaccine is important to your business and the safety of their colleagues


• Care personally – if colleagues are telling you that they’re not willing to be vaccinated, ask managers to take the time to speak with them and find out why. By investing the time to care personally, you may be able to understand their concerns and reassure them.


This information is correct as at 26 February 2021 and is based on government guidance which may be subject to further change. The full guidance note is freely available to BMF members. However, you should take advice from your lawyer on the specific details of your situation. BMJ


For more information about BMF membership visit www.bmf.org.uk or contact Richard.Ellithorne@bmf.org.uk


www.buildersmerchantsjournal.net March 2021


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