Out-Law / Your Daily Need-To-Know

Anne Sammon tells HRNews that reputational issues trump cost when it comes to vaccination policy
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    Should you give your staff time off to get vaccinated? If so do you have to pay them? Can you ask them to rearrange appointments? These are some of the questions we are fielding as the vaccine rollout in the UK gathers pace. Labour is banging the drum on this issue. The Mirror newspaper reports how deputy leader Angela Rayner has written to the ‘big 5’ business groups, encouraging them to make it easier for staff to get the jab. The ‘big 5’ are the CBI, the BCC, the FSB, the IOD and the manufacturers’ organisation, MakeUK. They emphasise the role that business has to play in the national effort to defeat the virus and imply that employers who choose not to support their employees in getting vaccinated risk being named and shamed in the press. Personnel Today asks the question – ‘Covid-19: Should employers grant time off for vaccinations?’ and points out that the government hasn't yet released any guidance for employers on how to manage this issue, but say existing law gives some pointers on how to approach the issue, flagging disability discrimination, the implied term of mutual trust and confidence and health and safety obligations. So there's a lot to think about - the reputational dimension as well as a myriad of legal obligations, not forgetting, of course, the employees' contracts of employment and employers' policies on this, if they have one. So what have we been saying to clients? To find out I spoke to Anne Sammon who is advising on this issue on a daily basis. Anne joined me by video-link. I asked her what the main issues are that clients are raising about the vaccine:

    Anne Sammon: “I think the first issue that we're being asked about a lot by employers is the extent to which they can, or should, be requiring employees to be vaccinated and that's quite a tricky issue that depends on the particular employer and what the rationale would be for that. I think once you get past that question, what we're seeing a lot of is, well, what do we have to do in terms of allowing employees time off for vaccination and do we have to pay them whilst they're having that time off. That will very much depend on the employment contract and policies that the employer has in place as well as all of those kind of contractual issues there are also reputational issues that employers need to bear in mind with these kinds of decisions. Because there is so much emphasis on people having the vaccine as quickly as possible, you don't want to be seen, as an employer, putting barriers in the in the way of employees being able to go and have that vaccine because you pushed them to have the vaccination outside of normal working hours or towards the beginning or end of the day. So that's one consideration that employers need to bear in mind when they're thinking about their approach to this. The other is to do with health and safety and that is that employers have an obligation to provide a safe working environment and one of the things that employers will need to think about is the impact of vaccination on that health and safety environment. So part of this depends on what the data shows in terms of transmission - the greater the impact the vaccine has on transmission, the more arguments there will be about employers needing to allow employees time off to be vaccinated because that actually helps from a health and safety perspective."

    Joe Glavina: “I can imagine most employers will give time off for vaccinations, but they may want employees to rearrange their appointment times. Can they do that?"

    Anne Sammon: "I think that's very much going to depend on the circumstances and why the employer is saying you have to rearrange it. If there's a genuine business reason why the employee can't go at that particular time, and it's possible for the employee to rearrange the appointment, then you can see situations in which that would be a reasonable request. It's a bit like the types of situations we often see with maternity appointments, where employees are kind of allocated a particular time, it's in the middle of the day, but there is no way for them to change the appointment and it would be unreasonable in those circumstances where they're not allowed to change the appointment time to require them to do so. So it is very much going to depend on, you know, is it just that it's a bit inconvenient for the employer and that the employee is losing some working time? Or is it that actually it's business critical that the employee is somewhere at that particular time and that's genuinely why they can't go to the their vaccination appointment at that time?"

    Joe Glavina: "Turning to the issue of money and the cost to employers. We know there's no legal right to be paid for taking time off work for medical appointment so presumably employers can say 'yes you can have time off' but it will be unpaid. And in any case, would this count as a medical appointment?" 

    Anne Sammon: "This would be a medical appointment and therefore employees don't have, subject to what's in the contract or the policy documents, any right to paid time off to attend the appointment. So it would generally be unpaid time unless the employer wants to be more generous than that. I think one of the challenges that we quite often see from an employer perspective is in calculating how much to deduct if you were going to go down the route of it being unpaid, how much you'd actually deduct from the employee's pay that month if they're not an hourly paid worker and often the administrative hassle of carrying out those calculations is such that it's actually more cost effective to just pay the employees than not."

    Joe Glavina: "Yes, and going back to your point about the risk to reputation, it will look a lot better if employers don't get embroiled in making those calculations?"

    Anne Sammon: "Exactly. I don't think you want to be the employer that hits the press because your employees say that they can't go and get vaccinated because either they can't afford to because they can't take the time off, or that you have made things so difficult in terms of requesting time off that they can't get out of the workplace, or away from their desks at home, to actually go to their appointments. That would be a PR disaster."

    Anne has appeared in a number of HRNews programmes in recent weeks on a wide range of issues to do with the vaccine including, most recently, the question of whether you should adopt a mandatory vaccination policy - she says you can, but it's risky. You can find that, and all the latest developments, on the Outlaw website.