04 December 2020

Mixing Vaccines With Metaphors - Blog

The Government and their medical and scientific advisers all currently seem to be competing in the ‘who can win the most obscure Covid-19 metaphor competition?’. But my money is on Jonathan Van-Tam, Deputy Chief Medical Officer for England, (he of the rather convoluted but strangely comforting metaphors), and also known as JVT to …well almost everybody actually. 

What is clear though is that a vaccine to combat Covid-19 has been approved and will start to be rolled-out from next week, and that’s surely something that we can all be joyful about. Certainly when it comes to employment matters, I’m sure most employers will be breathing a sigh of relief.

Proof of Vaccinations?

So, after months of juggling with the enormous task of maintaining Covid-secure workplaces, the end of our Covid-related employment issues is almost in sight. Or is it? The Government has been clear that it will not make vaccinations compulsory, but will leave it up to individuals to make that decision. The implication being that restaurants, shops, bars etc., may be able to determine whether they require customers to evidence proof of vaccination, and if that is the case, it may also apply to employment.

What would the legal position be if an employer insisted that all employees receive the vaccination, but some employees refused? Perhaps, pay could be withheld from those individuals? Well, it’s not necessarily that easy. The employment contract may not give the right to withhold pay, meaning that an unauthorised deduction claim would likely follow, and even if the contract did allow the deduction, pay couldn’t just be withheld forever.

Some employers may decide to dismiss those employees refusing a vaccination, and depending on the individual circumstances, treat the non-compliance as a refusal to obey a reasonable instruction (conduct), or perhaps a dismissal for ‘some other substantial reason’ - SOSR.

Of course there may be some employees whose medical conditions precludes them from safely receiving the vaccine, and in those cases, all reasonable adjustments would have to be made for them. If no adjustment(s) could be made, however, a discrimination claim might fail, and any dismissal might be judged fair for capability or SOSR.

Others may object because of their religious or philosophical beliefs. As dismissing them In this situation would likely amount to indirect discrimination, an employer would have to justify the requirement to be vaccinated, evidencing that it was proportionate to achieving a legitimate aim.

Whatever the reason for not wanting to be vaccinated, the reason for the dismissal would have to be shown to be sufficient and fair and reasonable in all the circumstances, if a fair dismissal is to be achieved.

Covid Safe

Some employees may argue that a workplace is either Covid-safe or it isn’t, and as they have been expected to come to work during the pandemic, it is unfair to insist they be vaccinated. While that argument holds some water, the workplace may only have been kept safe while social distancing was being practiced, something that will not be desirable going forward, either in the interests of employees’ mental health (most of us thrive on human social interaction) and/or for economic business reasons.

Not wishing to be outdone by JVT, let me just finish by saying…Covid-19 has been beating us hands down, and it’s winning on points, but there are still a few rounds to go, and we may just have gained the means to throw the knock-out blow, but winning depends on us all not counting our chickens before they’ve crossed the Rubicon…The winner!

I will be covering more about Covid-19 employment-related issues, such as, vaccines and employers’ requirement for employees to be vaccinated in next week's Law on Tour. Find out more here https://klcemploymentlaw.com/law-on-tour

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