Guidance urging people to work from home wherever possible in Scotland is to be relaxed in favour of a “hybrid” system of office and remote working
Employers have been asked to phase workers back into spending some time in the office from Monday 31 January. First Minister Nicola Sturgeon said the move was possible due to a “significant” fall in Covid-19 cases. But she warned that a “mass return” to offices overnight could run the risk of pushing infection levels up again. Scottish employers had been urged to enable home working wherever practical, but from Monday this will be replaced by a “hybrid” system. Ms Sturgeon said: “We would not expect to see a wholesale return to the office next week – indeed, given that the level of infection though falling remains high, a mass return at this stage is likely to set progress back but we know there are many benefits to both employees and employers, and to the economy as a whole, in at least a partial return to the office at this stage.’ Employers are encourage to continue to follow Covid-secure protocols in the workplace.
The next couple of weeks could well be a transitory moment for your workplaces, and what works now might not necessarily work in three months’ time, or even a year – it’s therefore important not to enforce rigid boundaries at this point in time and instead take a measured fluid approach. As employers and managers you should be having “non-judgemental” conversations about the best way forward for individual employees – if we have learnt anything from the last two years, it’s that things can change overnight! Businesses have a real opportunity now to use the experience of the pandemic to understand what employees need and to create equitable workplaces as a result of that knowledge.
Covid19/SSP rebate scheme
You can now claim for Covid19/SSP payments made to employees from the 21st December under the reopened Covid19/SSP rebate scheme. This link details the qualifying criteria and includes guidance on how to make your claim.
Refusal to receive the Covid vaccine
A care home assistant who refused to receive the Covid-19 vaccination when instructed to do so by her employer was fairly dismissed, a tribunal has found.
Ms C Allette, who was employed at Scarsdale Grange Nursing Home from December 2007 until February 2021, told the court that taking “any form of non-natural medication” would go against her Rastafarian beliefs.
However, the tribunal found that the claimant refused the vaccine because “she did not trust what [the care home’s director] or the authorities were saying at the time about the safety of the vaccine”, and was aware that her decision would “potentially put others at risk”.
She was initially offered the Covid-19 vaccine on 22 December 2020, after the government began its rollout to health workers and residents, but refused. The planned vaccinations were postponed until 13 January 2021 after an outbreak of the virus at the home, which resulted in half the staff being told to self-isolate and several deaths among patients. At the time nationally, there were around 1,500 recorded deaths from Covid-19 per day.
On 12 January, in a 43-minute phone conversation with the care home’s director, Mr McDonagh, Allette listed her concerns about the vaccine, which included a belief that the government was lying about its safety. However, there was no mention of her religious beliefs or reservations. During the call, McDonagh attempted to reassure Allette but made clear that she would be suspended and disciplined if she refused the vaccination the following day. When she arrived for her next shift on 16 January, she was handed a letter of suspension.
Her religious beliefs were first raised at the virtual disciplinary hearing on 28 January. When McDonagh asked other staff members about her Rastafarian beliefs, no one appeared to be aware of them. During the hearing, McDonagh also raised his concerns that the home faced the risk of liability if a resident or visitor contracted the virus from unvaccinated staff members, adding that as the claimant was the only unvaccinated staff member, “it would be easier to trace transmission to her and make legal action more likely”. He had also been notified by the home’s insurers that after March 2021, it would not provide public liability insurance for Covid-related risks.
Allette argued that as the only unvaccinated staff member, she would not need to be vaccinated to protect others. She also claimed that McDonagh had not provided her with expert advice about the safety of the vaccine. However, the tribunal found that McDonagh’s attendance notes from the phone call on 12 January was more acceptable evidence than the claimant’s recollection of the meeting.
The tribunal found that while there was no contractual term requiring the claimant to have the Covid vaccine or any other vaccine, the home’s instruction to make vaccination mandatory for all staff was a “reasonable management instruction” and that the claimant’s refusal amounted to gross misconduct.
Nathan Donaldson, employment law solicitor at Keystone Law, said that given the context of national lockdowns and high mortality rates in the home at the time, the claimant’s refusal to be vaccinated was unreasonable. “The requirement to be vaccinated was a reasonable management instruction in the context of the employer being a small nursing home provider and that its carers were providing close personal care to vulnerable residents… The employer also raised a salient risk of withdrawal of its insurance cover, if staff members were unvaccinated.”
He added that had there been “legitimate medical reasons” for the claimant being unvaccinated, the outcome of the case may have been different.
While the decision is not binding on other employment tribunals, Donaldson added that it was “an early indication of the approach other employment tribunals may take to cases concerning an employer’s voluntary decision to impose vaccination requirements on its staff”.
