Unvaccinated staff must be treated fairly
One of your employees is refusing to sit near a work colleague who is not vaccinated against COVID. He is also demanding that you relocate the unvaccinated employee for health and safety reasons. How do you handle this difficult situation in the workplace?
First things first. Even though one of your employees might be unhappy, this does not mean that you should take action to relocate the other employee as requested. There may be a very good reason as to why they have chosen not to have the vaccine and one employee does not have the right to dictate where another should sit or be located.
Secondly, you should find out from the unhappy employee what the issue is. It might be that they have a medical condition which makes them more vulnerable. If this is the case, then an appropriate risk assessment should be carried out. But if that is not the case, you should determine what is the reason for their complaint.
You should then communicate what measures you have put in place to protect your employees, this could be the introduction of extra spacing between workstations, protective screens, the wearing of masks and regular hand sanitisation.
If this still doesn’t resolve the issue with the unhappy employee, then you should point out that in most workplace settings, having the vaccine is a personal choice. There may be medical, or other reasons, behind someone’s decision not to have it.
Furthermore, you should explain that moving an unvaccinated employee to a different location also has legal implications, notwithstanding that it would also certainly raise issues of fairness. Penalising one of your employees in this way could even be perceived as bullying which could be a possible breach of the implied terms of trust and confidence in you as an employer as well as your duty of care to your employees. If you were to treat an unvaccinated employee detrimentally in this way, this could allow the employee to resign and claim constructive unfair dismissal.
The possibility of potential breach of contract arises as it may not always be known why the employee is unvaccinated. There is also the potential risk of a discrimination claim under the Equality Act if the reason for not having a vaccine was related to a protected characteristic such as disability. The key thing is to treat all employees the same, but where possible, ensure that all reasonable protective precautions are taken.
Ultimately though, if the employee won’t accept this explanation and approach (despite various health and safety measures being taken) you can point out that they have a duty to work with and be respectful to, their other work colleagues. You could also point out that an unreasonable refusal to sit near or work with a colleague can be viewed as an act of misconduct. This could even result in formal action being taken against them.
SUMMARY
You should not relocate the unvaccinated employee. Instead, you should:
1. Find out what their unhappy colleague’s objection is.
2. Explain the health and safety measures which have been put in place.
3. Explain that vaccination is a personal choice and not mandatory.
And ultimately, if the employee is still acting unreasonably toward their colleague, then this could be viewed as an act of misconduct and appropriate action could be taken by you as their employer. Hopefully this is a last resort and will not be necessary though.
