July 25

Can employers ask employees if they have had a COVID-19 vaccination?

An employer that intends to ask employees if they have been vaccinated against coronavirus (COVID-19) must be clear about its reasons for doing so. To comply with its data protection obligations, it must ensure that it has a legal basis for processing such information and that it complies with the conditions for processing special category data (relating to employees’ health) under the UK GDPR.

The Information Commissioner’s Office has published guidance for organisations on when collecting vaccination data can be justified. Depending on its reasons for asking about vaccination status, an employer may be able to rely on its legitimate interests and compliance with employment rights and obligations as the basis for processing such data.

However, in a nutshell, your reason for checking or recording people’s COVID status must be clear, necessary and transparent. If you cannot specify a use for this information and are recording it on a ‘just in case’ basis, or if you can achieve your goal without collecting this data, you are unlikely to be able to justify collecting it.

It is likely to be easier to justify collecting such information in certain workplaces, for example in a health or care setting where coronavirus presents a specific risk.

If you do collect this personal data, you must ensure that it is kept securely and that it is shared only with the specific people who need to access it. It must be kept for no longer than necessary. An employer could consider keeping anonymised records, if its aim is to monitor levels of vaccination across the workforce, rather than recording whether specified individuals have been vaccinated.

The employer must provide employees with information about how and why their vaccination data is being processed. This could be an update to an existing privacy notice or could be provided as a separate document.

Employers should be aware that an attempt to impose a mandatory vaccination policy would risk a number of legal claims and employee relations issues.

nicola.goodridge@goodhr.co.uk or +44(0)7917 878384

July 25

A new hybrid way of working post COVID…..some top tips…..

For employers that are moving to the hybrid working model, ground rules need to be set for employees who are operating under this new way of working. Below are some tips on how any policy should be structured and what it should contain…..

1. Introduce the concept of hybrid working

Employers can begin their policy by explaining that hybrid working, which is sometimes referred to as “blended working”, is a form of flexible working that allows employees to split their time between attending the workplace and working remotely (typically from home).

The policy can also highlight the benefits of hybrid working for both the employer and workforce. These benefits include:

• helping the workforce to become more agile in the new working environment created by the coronavirus pandemic

• enhancing the employer’s commitment to supporting a positive work-life balance.
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2. Define who is eligible for hybrid working

It is important for the policy to set out who is eligible for hybrid working, for example by making it clear which roles are suitable for this way of working.

The employer may have concluded that hybrid working is not suitable for some roles, such as certain sales roles where face-to-face contact and the personal touch are essential. The policy can make this clear and explain the rationale.

The clearer the employer is on which roles are suitable for hybrid working, the less likely it is that there will be disputes with employees over whether they can move to hybrid working.
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3. Set out expectations on attending work vs working remotely

The policy should set out clearly the number of days per week employees are generally expected to spend attending the workplace compared with working remotely. For example, it could be that the employer is aiming for a 50/50 split between attending work and working remotely.

However, the policy should also build in a degree of flexibility, with the ratio for each employee ultimately depending on:

• individual circumstances

• the nature of the role

• what is happening within the role and team at any particular time

• the employer’s operational needs, including the space it has available at work locations.

Given the degree of flexibility that hybrid working arrangements provide for employees, the policy can emphasise that the employer expects the workforce to be flexible. This could include requiring staff to attend work in particular circumstances, for example for in-person training and for meetings that their line manager has determined are best conducted in person.
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4. Describe the working arrangements for workplace attendance

The policy can set out what arrangements employees can expect when they are attending work, particularly around:

• working patterns, with an emphasis on employees’ working hours (for example if the employee is expected to stick rigidly to regular hours or if flexible start/finish times are allowed)

• workspaces, including an explanation of any hotdesking arrangements.

It is essential that the policy sets out any safe-working measures that are in place, which could include spacing out workstations, compulsory mask-wearing in certain areas, and regular cleaning schedules.
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5. Provide guidance on remote working

The policy can provide guidelines on what is expected of employees while they are working remotely. This section of the policy can cover:

• working patterns and maintaining a work-life balance

• sickness absence reporting when working remotely

• technology and equipment provided to assist with remote working

• maintenance of a safe and healthy remote working environment

• data protection, including the practice of good computer security.

This section of the policy can also flag up any financial assistance available, which could include allowances to help employees to pay for internet costs at home, the costs of any additional equipment, and the costs of travelling for days on which they are attending the workplace.
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6. Retain the right to request flexible working

Employers need to find a way for their hybrid working model to sit alongside the traditional right to request flexible working. This section could explain:

• what other types of flexible working are available

• that these types of flexible working remain available for employees to request

• what to do if the employee is not eligible for hybrid working but would like to request it.

The employer can stress that it still operates a separate policy on statutory flexible working requests alongside its hybrid working policy.

nicola.goodridge@goodhr.co.uk or +44(0)7917 878384