No Jab, No Job, No case?
Vaccination will soon be a requirement for those working in CQC registered care homes, but what if employers in other sectors make it a requirement of working? Is there a potential claim?
No Jab, No Job, No case?
In two weeks time, any employee working within CQC registered care home will be required to have undergone a complete course of Covid 19 vaccination, unless they are medically exempt (very few).1
For those who are unvaccinated as of that date, their employment will end. Whatever the political and moral rights and wrongs of the decision to implement this policy, it is beyond the scope of this article. I want to concentrate on the ramifications from an employment law perspective.
CQC Care Homes and unfair dismissal
I suspect there will be a number of claims for unfair dismissal and discrimination following the November cut off date. Given there are over a million people employed in the care sector, even a very, very small percentage will still represent hundreds, if not thousands of potential tribunal claims - and that’s not the end of it.
Following a recent consultation, Sajid Javid, Health Secretary, said he was leaning towards making jabs compulsory for frontline NHS staff too. That would again present the Employment Tribunal Service with a huge number of potential claims.
Thus far, I’m not aware of any claims coming before the employment tribunal in respect of a requirement to be vaccinated in the workplace. That’s probably because currently the waiting list for tribunals is painfully slow, with some cases taking in excess of two years to be listed for a hearing. There may be some that have been lodged but, as of now, we’re in the dark as to how tribunals will approach the issue.
So here’s my take on it . . .
In so far as claims against care home owners and operators, and possibly the NHS are concerned, I have little doubt that such claims will not succeed. In fact many, if not most, will be sifted out at a very early stage, simply because having a full course of vaccination will be a legal requirement and the claimant will have no prospect of succeeding.
What about employers other than NHS or Care Homes?
This is where it gets more interesting. The starting point for me is to consider the effect Covid has had on the state of the nation’s health and the economy. There can be no doubt that it has cost many thousands of lives, left thousands reeling with the after effects of the disease (Long Covid), brought the economy to its knees and put countless businesses under. To say it has been a national crisis is an understatement.
It is against this background, and the advice from the medical profession, numerous professors, chief medical advisors and the government, that we should do everything possible to prevent the spread of this disease.
Save for a few anti-vaxxers, the overwhelming consensus of opinion is that vaccination is the only sure fire way to beat it.
In the past 40 years health and safety legislation (H&S) has progressively made the workplace a safer place to be. Employers are very conscious of their H&S obligations, not least because the fines for breaching H&S laws can be huge. There are protections for employees who feel their H&S is at risk too. They can bring issues to their employer’s attention without fear of being sacked, because the penalties for dismissal for H&S reasons can be significant.
It is not surprising we have seen screens popping up in the workplace, stickers on the floor and signs everywhere reminding us of our obligations to each other. Employers know they must keep their staff safe in addition to any visitors or customers. There is no doubt that such measures make a difference and help prevent the spread of the virus, but the go to weapon in the armoury is without doubt full vaccination.
I believe that if employers insist on staff having a full course of vaccination before attending the workplace, they will will have a fairly strong defence should the matter come before the tribunal.
I’m putting my neck on the line with this one but it should be qualified. When I say employers, I don’t mean all employers - but probably most. I think there may be instances where staff work without coming into contact with other persons, where vaccination will have little, if any, impact, but such occurrences will be rare in the scheme of things. Those who work from home would clearly not pose a threat, unless of course they attended the office from time to time.
Reasonable management instruction?
So, when communicated, an employer’s insistence that staff be vaccinated before attending the workplace would (in my opinion) be a reasonable management instruction. Failure to follow the instruction would be considered a breach of the disciplinary procedure. The logical conclusion of the process is that the individual would be dismissed.
It is well established public policy that we should be vaccinated - daily on the news we are provided with the numbers who have received the first and second doses, deaths and hospitalisations. Nightclubs and other venues which have large crowds already insist on proof of vaccination. We’re well into the booster rollout
An employer promoting a policy of vaccination to ensure a safe place of work cannot surely be penalised for doing so? Does it matter that it doesn’t involve a large crowd? I think not - why should it? The virus spreads by close contact, whether it be just a couple of people or a hundreds.
Furthermore, if it is a legal requirement that only vaccinated staff work in care (and probably the NHS), then it is inconceivable that a tribunal is going to hold that an employer who insists staff are vaccinated is acting unreasonably.
Government guidance actively promotes employers encouraging their employees to get vaccinated:
As an employer, you are in a unique position to support the COVID-19 vaccination programme by encouraging staff to get both their first jab and then, when they are eligible, their second jab, to ensure they have maximum protection.
Supporting your employees getting vaccinated comes with several benefits.
Having the COVID-19 vaccine means:
your employees can better protect themselves and those around them
lower risk of your employees catching and spreading COVID-19 to colleagues, therefore reducing the negative impact on your workforce
protecting your customers when using your services
bringing your staff back safely into the workplace sooner
I believe this in itself is more or less a Get out of Jail Free card.2
Sending the wrong message?
And what about staff that use the vaccination requirement as a way out of their job and a route to some extra money? There is a real possibility that if it were held to be unfair to require vaccination, then staff could refuse the vaccine simply as a means to an end for their own benefit. We would be in a position where discouraging the take up of the vaccine could have a financial benefit. For that reason alone I can’t see a tribunal supporting them.
At the end of the day, employment law is all about making reasonable decisions and come the day of the tribunal, I will be very surprised if it were held that mandatory vaccination in the workplace would be considered unreasonable. 3
What about placing the staff member on unpaid leave rather than dismissal?
It’s an option but the problem as I see it is that the period of leave is open ended. How long is this going to go on for? As I recall it was all going to be over by Christmas - last year! bear in mind that whilst on unpaid leave the employee is still employed and accrues holiday leave. Do they just sit at home and each month ask for a couple of days pay to use up their holiday? I don’t think an employer would be criticised for refusing to adopt this approach.
From a global perspective
Countries are mandating for compulsory vaccinations, whether it be workers in the care sectors, government workers or the whole workforce (Turkmenistan).
In Fiji companies face fines and can be forced to stop operations over vaccine refusals. President Biden ordered all private companies with over 100 staff to be vaccinated by December 8 or get tested weekly. The order covers 100 million people4. He is actively calling on companies to require covid vaccinations.
In Russia all workers with public facing roles must be vaccinated. Companies must have at least 60% of staff vaccinated with the first dose or face fines or temporary closure.
Probably the strictest of all is Micronesia where all persons over the age of 18 will have to receive the vaccine.
In conclusion, it is my belief that if staff are dismissed due to not having the jab and they are not medically exempt, they will be unlikely to win their case in the tribunal.
The only rider I will put to that is that in all cases the employer must follow a reasonable process and at the very least the ACAS Code.
**As I say above, I am giving no opinion as to the rights and wrongs of mandatory vaccination, just putting the position in employment law as I see it from my humble perspective**
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11 November 2021
Unless medically exempt
See Reuters Factbox