The impact of the Coronavirus pandemic has been felt across all areas of our lives, not least how we work. For many, ‘home’ and ‘workplace’ have been the same location for over a year. Now, as we approach the final stage of the UK Government roadmap, many employers are considering what this means for offices and the long-awaited ‘return to work’.

Solicitor Carolyn Bowie from UK law firm Weightmans considers three common questions for businesses in the challenge of returning to the workplace.

Can an employer require employees to take a COVID-19 test at work or before returning to work?
There is no legal requirement for employees to be tested and an employer cannot force an employee to take a COVID-19 test. However, some employers may want to introduce testing as part of workplace policy. They could face resistance; while the employer can have understandable health and safety reasons for testing employees, employees might regard it as an unnecessary invasion of privacy.

Communication with employees is key to introducing any new policy. A consultation process should be commenced with all employees, or a recognised trade union, with feedback and suggestions sought. This process provides an opportunity to explain the rationale and benefits of a testing regime and encourages employee ‘buy-in’. Any agreement reached should then be written in a policy document.

Employers must be aware of their data protection obligations in processing data, how they will communicate to staff how personal data will be used and the compatibility of the testing programme with their legal responsibilities.

Government guidance doesn’t replace the need for independent legal advice or supersede existing legal obligations, including those relating to health and safety, employment, data protection or equalities law or guidance on local restriction tiers. Consequently, employers should seek legal advice before taking any disciplinary action against employees refusing to take a COVID-19 test. Each case should be carefully considered on its own merits and the specific risks involved.

Can an employer require employees to be vaccinated against COVID-19?
This is a highly sensitive issue that will require careful communication with employees and their representatives. The government has not yet legislated for the vaccine to be mandatory for anyone, but this is a continually evolving issue.

As the government has not yet made vaccination mandatory, it would be risky for employers to insist on vaccination, even in workplaces where there is close contact with vulnerable people. The recently updated ACAS guidance advises that employers should support staff in getting the vaccine, but should not make it a requirement.

In the absence of legal requirement, an employer cannot force an employee to be vaccinated without their consent. However, an employer could decide to prevent unvaccinated employees from entering the workplace, or restrict their duties, and this could in turn adversely impact an unvaccinated employee's pay. Any employer considering imposing a mandatory vaccination requirement, or treating employees or job applicants differently because of their vaccination status, should carefully consider consequential issues, e.g. potential discrimination, the effect of vaccination on other workplace health and safety measures and personal injury claim risk.

Can an employer discipline or dismiss an employee who refuses to have a COVID-19 vaccine?
Even the existence of a contractual requirement for vaccination does not, necessarily, allow an employer to lawfully discipline or dismiss an employee if they fail to do so. Dismissing an employee for refusing to be vaccinated could amount to unfair dismissal and/or unlawful discrimination. It is likely that an Employment Tribunal would sympathise with an employee who did not want to get the COVID-19 vaccine and was dismissed or disciplined as a result.

This specific issue is yet to be tested. Therefore, implementing a mandatory vaccination regime and/or taking disciplinary action against those who refuse to comply is not without litigation-risk. To bring a claim for unfair dismissal, an employee needs to have at least two years’ continuous service. The affected employee would need to show that the decision to dismiss them for refusing to be vaccinated was unreasonable in all of the circumstances of the case to win their claim.

It is important to evaluate how essential vaccination is to managing the risks at your organisation; e.g. where employees are in contact with the clinically vulnerable individuals, testing may be critical to risk management. If the risks of transmission can be effectively managed in other ways, for example through homeworking, mandatory testing and/or vaccination may be deemed unreasonable by an Employment Tribunal.