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Friday, 12 March 2021 13:33

Enforcing Covid Guidelines

The last 12 months has presented a raft of new rules and guidelines that we are expected or requested to adhere to in order to protect the health & wellbeing of ourselves and others. There has been much debate over the legality of employers to enforce such guidelines, in particular whether receiving the Covid-19 vaccine can be mandated as a condition of employment.

The debate took a further twist recently when an Employment Tribunal ruled to uphold an employer’s decision to dismiss an employee for refusing to wear a mask when he was on a client’s premises.

If we delve a little further into that case, we will see that the employee, a delivery driver, arrived at the premises of Tate & Lyle where he was issued a mask and told to wear it at all times whilst on site in accordance with the company’s health & safety rules. He took the mask off whilst he was in his cab and refused to put it back on when challenged stating that he didn’t have to wear it whilst he was isolated in his cab.

Because of this breach of rules, the driver was subsequently banned from Tate & Lyle’s premises. Despite an appeal from the employer to have the driver allowed back on site, Tate & Lyle stood firm and, as the employer did not have any alternative work for the driver, he was dismissed for “some other substantial reason”; or SOSR in HR speak.

So, whilst the driver wasn’t dismissed explicitly for refusing to wear a mask, his contract would have dictated that he must follow the health & safety rules of any clients whilst on their premises. And because the wearing of a mask was a health & safety rule of Tate & Lyle’s, it was this failure to wear one that ultimately led to his dismissal.

Let’s consider the situation if it was the employee’s direct employer who held the rule that masks were to be worn on site. Refusal to wear a mask in this situation would more likely fall under “failure to follow a reasonable management instruction”. This is very often cited as grounds for dismissal, and, under the current circumstances most would agree that expecting staff to wear a mask on site, at least whilst moving around, is indeed reasonable.

So how is this likely to extend to the insistence that employees must be vaccinated. Well, that isn’t something that we are going to speculate on at this stage. It’s something we’ve already discussed in a previous post, but we’ll have to wait for a case to reach Tribunal before we have a definitive legal answer.

We should consider though that Government guidance is to encourage uptake of the vaccine rather than mandate it and that there is quite a difference from being injected with a something than simply wearing some PPE. Furthermore, we should note the Government information regarding the vaccine and Covid transmission:

Can you give COVID-19 to anyone if you have had the vaccine?

The vaccine cannot give you COVID-19 infection, and a full course will reduce your chance of becoming seriously ill. We do not yet know whether it will stop you from catching and passing on the virus, but we do expect it to reduce this risk. So, it is still important to follow the guidance in your local area to protect those around you.

To protect yourself and your family, friends and colleagues, you still need to:

  • practise social distancing
  • wear a face mask
  • wash your hands carefully and frequently
  • follow the current guidance

In the meantime, organisations need to undertake their own risk assessments, and apply appropriate rules and guidelines. Make sure these are communicated to all employees with senior leaders role modelling and re-enforcing them. Include any outside organisations in your communications that might have reason to come onto your premises. Remember to keep an audit trail so that employees can be held to account.

We have documents and templates to help businesses with risk assessments and guideline implementation and as usual we are available for support on 01451 331331 or via email on This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Read 124 times Last modified on Friday, 12 March 2021 14:25
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