In this article, Nicola Mullineux, Group Content Manager at Croner-i explores the top questions operators may have surrounding the vaccine.
Frequently asked questions
Does the operator have any right to require that a member of staff accepts the offer of vaccination?
The Public Health (Control of Disease) Act 1984 provides that individuals must not be compelled to undergo any mandatory medical treatment or vaccination so your employees are free to make their own choice on whether to have it. Depending on the type of work involved, some employers will be justified in contractually obliging their employees to have the vaccine, for example, where the risk of spreading infection to vulnerable people is sufficiently high to outweigh the contravention of freedom of choice. This is likely to mean a change in terms and conditions for employees which needs their consent. If consent is not forthcoming, imposing the requirement carries employment law risks so operators should proceed with caution.
If a driver refuses vaccination, would it be reasonable for the employer to utilise them less (with the ensuing impact on the driver’s income) than those drivers who have accepted a vaccine?
Drivers may refuse the vaccine for many reasons and it would be important to identify the real reason for refusal. Refusals related to a protected characteristic such as religion or a disability mean that the driver would be protected against less favourable treatment if action is taken against them, eg dropping the number of hours they work, for not having the vaccine. Operators may be able to objectively justify the action but this is a tricky legal test to pass. It’s advisable to first explore alternatives, like regular Covid testing.
If a coach driver who has not received the vaccination (but is willing to be vaccinated in due course) is allocated to carry a party of older people who have been vaccinated, would they have any legal grounds to refuse to do so if they were cautious about those passengers not observing social distancing and other requirements?
Employees are protected against action being taken against them for refusing to work if they have a reasonable belief that work poses a serious and imminent danger to them which they could not reasonably have been expected to avert. The employee would have to demonstrate the reasonable belief, so operators should proactively consider how to dispel this belief, eg ensuring health and safety rules are maintained by drivers and passengers throughout journeys. It’s also important to point out that there is no concrete evidence at this time that the vaccine prevents transmission of Covid, therefore social distancing and extra health and safety measures in place now will continue for some time yet.
If a member of staff refused vaccination and then contracted the virus and was absent from work as a result, would the employer be liable to pay any contractual sick pay that is above SSP?
An employer’s normal rules on sick pay will continue to apply for coronavirus related absence, however it comes about, unless a process is undertaken to change those rules. This means that contractual sick pay in excess of SSP offered by an employer would need to be honoured according to current rules which may already include certain qualifying criteria.
If a member of staff is offered a vaccination appointment during their normal working hours, is there any requirement on the operator to work around that?
There is no legal requirement to have special rules on time off for employees to have the vaccination so operators can rely on their usual arrangements for accommodating drivers’ medical appointments. However, offering more flexibility, or at least ensuring that the driver is not disadvantaged by taking time off to have the vaccine, may help encourage uptake.