Covid unvaccinated and returning to work

[Flakjacketon]

I know this area is complicated at the moment. I understand that an Employer has a legal duty to keep employees safe and that employees can refuse to return to work if they feel unsafe.

But.....

Can an employee refuse to return to work stating that they don't feel safe in the work environment and the reason given, for feeling unsafe, is that they have not had the Covid vaccine. However they have not had the vaccine through personal choice, not for medical reasons. Therefore no matter what steps the employer takes to create a safe working environment, this individual may never feel safe at work and so never return.

Can this be the case?

Surely the Employer's duty is to risk assess & put in appropriate measures, so hygiene, masks & distancing + any reasonable adjustments for employees with a disability, for example working from home if poss if clinically vulnerable.

If an employee refuses the vaccine, that's on them. (Unless they work in care after 11th Nov). They can choose not to be vaccinated. They can't choose not to do their job.

Yes it can be the case and then it would be a case for meetings with HR to discuss whether the company is going to dismiss them or whether they will agree to a settlement. Alternatively, they may be able to agree for the employee to use up any remaining holiday and not enforce the full notice period for resignation.

Is the employee expecting to be paid for not being at work?

They can refuse to return, but how can they possibly expect to remain employed in the longer term? If the employee will never accept measures the employer puts in place then it seems quite straightforward to me.

Employers have to demonstrate that they have carried out risk assessments and followed all relevant laws and safety guidelines and take reasonable steps to provide a safe environment for all workers. An employee simply refusing to be vaccinated would not usually necessitate any further measures. If they refuse to return to work despite the employer having done the above the employer can begin the dismissal process on the grounds of unauthorised absence.

To be successful at tribunal the employee would have to show that the employees concerns were reasonable and justified and that the employer had not followed the relevant guidelines.

Does the workplace have a Covid risk assessment ? I had to complete the ALAMA one then a different one last time ( I have done 3 since first lockdown) .....the scores are either numerical or high medium low etc....but there is leeway on them for HR to consider individual circumstances.

The job can't be done fully from home and the team have continued to work throughout; so the safety procedures are robust, well monitored and reviewed regularly. That there have been no covid cases linked to the workplace is testament to this.
When the first lockdown was announced, the older and vulnerable members of the team were allowed to work from home but they can only undertake a limited range of tasks remotely so the team members in the office do the 'heavy lifting'.

Most staff have now returned, or agreed to return to the office, with this one exception.

I'd be advising the employer to take legal advice with regards to starting the disciplinary procedure.

The Employment Rights Act specifically states that an employee can remove themselves from the workplace if there is serious and imminent danger that they cannot reasonably be expected to avert.

If they aren’t CEV and an appropriate risk assessment has been completed, with appropriate measures in place, then I don’t believe that any danger relating to covid is (legally) either serious or imminent. They could also “reasonably” avert any perceived danger by having the vaccine…

They also have to demonstrate a genuine belief that they are at risk (rather than using it as an excuse to continue WFH)

Anyway - if they have specifically said that they feel unsafe due to them not having had the vaccine (as opposed to there being a genuine risk to their health and safety whilst at work) then they’d fail the legal test. So it falls back to basic insubordination, or a breach of contract if they’re refusing to attend work, which is a disciplinary issue.

What is the reason that they've chosen to be unvaccinated?

I'm going to get piled on for this, but I'm losing my patience with people who have actively chosen to not be vaccinated (not including those that medically are unable to be vaccinated).

If it's correct that 80% of those in hospital at present are unvaccinated then that's a shame for them, but I don't see why any extra measures should be put in place to protect them, when they've chosen not to protect themselves.

They don't trust the vaccine not to have long term effects; in their opinion it was developed too quickly to be safe.

Can an employee refuse to return to work? Yes of course they can.
Can an employer sack them for gross misconduct as a result? Yes of course they can.

@Goblina

I'm going to get piled on for this, but I'm losing my patience with people who have actively chosen to not be vaccinated (not including those that medically are unable to be vaccinated).

If it's correct that 80% of those in hospital at present are unvaccinated then that's a shame for them, but I don't see why any extra measures should be put in place to protect them, when they've chosen not to protect themselves.

It’s odd that somebody who hasn’t had the injections won’t go back to work and I’d imagine they would have no fear around the virus. Normally it would appear it would be he other way round.

Really not sure why you are losing patience with those who have decided not to have the injections, what is there to lose patience about?

Really not sure why you are losing patience with those who have decided not to have the injections, what is there to lose patience about?

Them passing Covid onto others. I would be interested to know if the subject of OPs thread is avoiding all public contact, or just the sort connected with their work.

@Cuck00soup

Really not sure why you are losing patience with those who have decided not to have the injections, what is there to lose patience about?

Them passing Covid onto others. I would be interested to know if the subject of OPs thread is avoiding all public contact, or just the sort connected with their work.

All the people that I know who have had the virus have had both injections and certainly not had any problems passing it on to each other. You do realise that it you can still catch COVID and pass it on to others, vaccinated or not don’t you? And studies have found that the viral load is the same in both.

They do fear the virus which is why they don't feel safe returning to the office. However they fear the vaccine too; they have not refused to be vaccinated because they are a covid denier but because they are afraid of the vaccine.

I think they have buried their head in the sand , hoping the virus will fade away and being asked to return to the office has made them admit their fears.

I don't think an employee can refuse because they don't feel safe?

There must come a point when their health anxiety renders them unfit to do their job.

Tread very carefully, depending on how extensive their anxiety is it may be classed as a disability and therefore be a protected characteristic.
www.acas.org.uk/supporting-mental-health-workplace

[quote BelleHathor]Tread very carefully, depending on how extensive their anxiety is it may be classed as a disability and therefore be a protected characteristic.
www.acas.org.uk/supporting-mental-health-workplace[/quote]
Doesn’t mean they can’t be dismissed.

Oh they can be dismissed alright. The employer may also be taken to a tribunal for unfair dismissal.

No matter how irrational anyone might think her behaviour is, no one can deny that Covid has caused a lot of people to suffer impaired mental health for the first time in their lives.
That's why I say tread carefully and handle it in accordance with your internal policies with a focus on a "duty of care".

@BelleHathor

Oh they can be dismissed alright. The employer may also be taken to a tribunal for unfair dismissal.

No matter how irrational anyone might think her behaviour is, no one can deny that Covid has caused a lot of people to suffer impaired mental health for the first time in their lives.
That's why I say tread carefully and handle it in accordance with your internal policies with a focus on a "duty of care".

Doesn’t mean, especially based on what the OP has said, that the tribunal would rule in the person’s favour.

Adjustments for a mental health based disability only have to be reasonable and proportionate. Based on the OP this person would not have a case.

Ignoring the covid bit.. You are too anxious to go into work and do your job... Should a company keep paying you?
Nope you should be on the sick
Go and see your doctor about your anxiety...
Or realistically expect to be taken down the disciplinary route
Or hand in your resignation

Just make sure that it can be evidenced that reasonable adjustments were made (referral to occupational health, staggered return to work, Covid risk assessment etc).

@Flakjacketon

They don't trust the vaccine not to have long term effects; in their opinion it was developed too quickly to be safe.

They can believe what they like - but in that case they can't do their job.

So they either leave, or they take long-term unpaid leave, or they are sacked.

But they don't get to sit at home doing nothing. It would be different if they could not be vaccinated, or knew it had not worked for them.