Refusing employment to job applicants because of not having had the COVID-19 vaccination is an area of employment law with a certain level of complexity.
Discrimination in HR Policies
In the event that an employer decides to introduce an HR Policy, according to which, people who have not been vaccinated are refused employment, then there is a high possibility that this policy can be considered indirectly discriminatory. This is because such policy would primarily affect people who might not be able to have a vaccine due to specific reasons.
There are some groups of people who do not wish to have and will not have the COVID-19 vaccine. Some of them might be advised by their doctors to avoid vaccinations. That could include people with certain health conditions, people of young age who are not in priority groups, or pregnant people. The Equality Act 2010 protects job applicants from being unlawfully discriminated against, on the grounds of a protected characteristic (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation).
The above, however, do not exclude the possibility, depending upon the circumstances, that an employer can sufficiently (and proportionately) justify the indirect discrimination and the reasons for the policy. For example, indirect discrimination could be justified in cases where there would be a legitimate aim to be achieved, and the method to achieve this aim would be as well reasonable and proportionate (i.e., this method represents the best way to fulfill that goal).
Social Responsibility to prevent the spread of COVID-19
Following the above, the legitimate aim and primary goal for socially responsible employers and individuals is to prevent, control, and eliminate the further spread of COVID-19. However, it is still unclear whether requiring a vaccine is proportionate or not. It could be argued that the vaccine does not stop the virus transmissions, although there may be some suggestions it may do. Moreover, employers can also take other precautionary measures to preserve employee health and safety, such as the use of lateral flow tests, the use of which does not impact certain groups of individuals as the vaccine could have.
Asking prospective employees to disclose their vaccination status
Employers are generally prohibited from asking candidates and prospective employees any health-related questions – and in this case, this would include their vaccination records. There are certain limitations to the above principle, such as for example industries, sectors, and job roles (e.g., working in the care sector, or with vulnerable people) where employers might need to know if employees have been vaccinated or not for particular health and safety reasons. Even in this case though, employers need to consider alternative employment for employees who have not been vaccinated, as best practice.
The fact that this matter has only recently come up, and has not yet been tested with claims in employment tribunals, carries a great risk for employers who are considering implementing such policies.
To what extent are the pandemic-urged schemes of remote work, flexible hours, and technology-driven work here to stay?
Although flexible working as a term has been discussed for over a decade, with the government gradually taking measures for employees to be able to request flexible working arrangements – irrespective of their parental or caring responsibilities – many employers appeared reluctant about communicating a clear message around it. Very few employers advertise flexible working or homeworking as a benefit to attract talent, although a lot of them do actually offer this option. There has been an argument that controlling employees will be difficult; employers are unsure of how they will manage to manage work on a daily basis.
The widespread availability of telework technology and the feasibility of performing work remotely for many workers did not convince employers that working from home is a good idea. That was before Covid; the pandemic forced the issue, as within a few days all employers were forced to keep people home, and what started as a few weeks of working from home has evolved into a catalyst for change regarding how we work and live.
What is certain, is that remote work is here to stay. This transition has already been set in motion with big tech companies like Facebook and Twitter taking the initiative by introducing remote work to all staff at least for the remainder of 2020, and in some instances, permanently. Google has also begun to rotate employees on-site, with facilities remaining at 10% occupancy at all times.
Stepping into the post-Covid world, there are several potential shifts in the workplace, some of which are listed below:
1. Different approach to communication
With remote working, communication gets tougher and time-consuming, and staying connected requires a lot of work. You have fewer chances to communicate effectively, so you need to make the most of the fewer conversations you have.
Write down things, share them, and make them easy to reference. Meetings should have clear agendas shared beforehand in order to give people time to prepare and note any questions or comments they might have to share.
Helping employees stay connected can be achieved by real-life meetups occasionally (for example once a month). There are a lot of great apps available (Yulife is one) that support interactive communication, offer engaging activities that encourage employees to stay active, exercise, and compete with each other, and also provide other benefits such as counseling services for those who need it.
2. Drastic change in Performance Management and methods of feedback
Managing a remote team usually requires changes in how managers communicate their expectations and instructions, as well as customised approaches for optimising each employee’s productivity. Many employees find it difficult to stay focused when working from home, others have feelings of loneliness and others can concentrate easier. Managers should bridge this gap of isolation by building relationships and offering supportive feedback. Building personal relationships plays a crucial role in enhancing engagement – which is vital, given the hidden costs that incur to employers when losing talent.
Employee involvement and participation is not new; however, Covid has reminded us how people are motivated at the highest levels when they can connect their work contributions to a greater purpose and mission. While many employees thrive in a less structured environment with minimal supervision, interaction, or participation, others require more frequent “intervention” to keep them focused and engaged, and that’s something managers should have as top priority.
While promotions or rewards have so far widely been connecting to the employees’ tenure within the business, the increased platform usage and decreased in-person connection will eventually lead to rewards being more data-centric, and this will affect employees directly. Again, various apps can be used in collecting data, tracking time, measuring employee productivity, or running anonymous surveys to collect feedback.
3. Increased necessity for cybersecurity
Rise in remote working has led to a rapidly increased use of technology (platforms, cloud, drive, or more specialised systems depending on the industry).
As such, cybersecurity’s importance is on the rise. Our society is more technologically reliant than ever before and there is no sign that this trend will slow in the post-Covid world. Moreover, employees usually retain personal information on their work laptops, hence personal data that could result in identity theft is now posted to the public on our social media accounts.
Negligence on cybersecurity measures can damage a business in range of ways including:
Economic costs: Theft of intellectual property, corporate information, disruption in trading, and the cost of repairing damaged systems.
Reputational costs: Loss of consumer trust, loss of current and future customers to competitors, and poor media coverage.
Regulatory costs: GDPR and other data breach laws mean that the business could suffer from regulatory fines as a result of cybercrimes.
Simple steps that can be taken to reduce the risk of cybercrime could include employee training on cybersecurity; tools that limit information loss, monitor third-party risk scans for data exposure and leak credentials.
4. The changing role of HR
Undoubtedly, in the past few months, HR enjoyed some larger recognition and appreciation for the breadth of what it does and can do: It has been essential in everything from ensuring compliance with government guidelines at the early stages of the Covid crisis, managing the furlough scheme, ensuring all appropriate health and safety measures will be taken to make the workplace Covid-safe, to monitoring workforce sentiment, establishing connections between leaders, employees, and teams, and integrating well-being into work.
Moving forward, employers should ask themselves if HR is positioned to make an impact, and if HR has a seat at the table. HR should take a leading role in emerging change and support leaders and employees to adapt to the changing world market, industry, and business requirements. Employers should evaluate the role of HR and contemplate if HR has a broad enough focus to extend their influence in areas where they can help position the organisation to recover and build for the future.
The pandemic caused extreme stress and feelings of uncertainty to both employees and the organisations, with the last having to accelerate processes such as the use of technological equipment or remote working, in a rapid and dynamic way without sufficient time to prepare. Optimising, structuring, establishing, and sustaining those actions will signal the future of work that is here to stay. That path must be paved with meaningful change, and a view to building the sustainable version of tomorrow.
Article featured in the Ashley Kate HR News Centre, 2020.