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Jab or Job? – The legal position with compulsory vaccinations
Wednesday, February 3, 2021
Wednesday, February 3, 2021
With the positive news of various vaccine’s now approved by the Medicines & Healthcare products Regulatory Agency (MHRA), the prospect of finally managing Covid-19 to a point where we can return to a “normal”, lockdown free existence seems within reach.
Unfortunately, along with this long-overdue series of vaccine good news stories we’ve also had an unsettling trend of communities casting doubt on the efficacy of the treatment and suggesting, when offered they would refuse the injection.
The truth is, whether as a result of responding to a viral “fake news” story, religious, health or just fear there will be members of the public who simply turn their back on the vaccine.
This poses a problem for employers in that they could face complaints from staff who fear being near their unvaccinated colleagues and dependent on their roles and workplace this could be highly disruptive to the company.
What is the legal position?
A compulsory vaccination policy would interfere with the right to autonomy under Article 8 of the European Convention of Human Rights, and arguably it would reach the threshold of degrading treatment under Article 3.
There have been exploratory discussions around the balancing of being vaccinated with additional freedom of movement thereby restricting such activity for anyone refusing a vaccination.
If the law is to change an Act of Parliament would be necessary and it would prove highly controversial in what we consider a free and democratic society.
Employers who take matters into their own hands can also expect close scrutiny.
Recently Pimlico Plumbers publicly announced it would be making vaccination of employer’s compulsory however their Facebook page statement is at pains to point out that they would not force people to take the jab. They are one of the first employers to make it a condition of employment. [see below]
Just to be clear, as a company we believe that vaccinations are the way of the future to keep people safe from Covid-19. However, that doesn’t mean that anyone should be forced to have a jab, and as a company not only can we not do that, but we would never advocate such a policy; it would be an outrage.
We will, when vaccinations are readily available, make having one a condition of employment for all people who are able to have the vaccine safely. Once again existing members of staff will not be forced to do anything they do not want to do, although for safety reasons we would recommend and encourage them to be vaccinated.
To be honest the entire thing will very soon be a non-issue as the vast proportion of the population will of course be vaccinated very soon. All we are trying to do here is keep our staff and customers safe, and some of that actually goes towards our legal obligations on health and safety.
What is the difference between a vaccination against a virus that can kill and a hard hat on a building site that may prevent death from a heavy object falling on a worker’s head? [Pimlico Plumbers Facebook Page 14.1.21]
As if to highlight the difficulties, Saga Tours proudly announced the launch of a new ship, The Spirit of Adventure, from the port of Dover on 4th May 2021. To overcome passenger anxieties and give the venture an opportunity to succeed Saga are insisting on ALL passengers being vaccinated. Given the demographic of a Saga Tour this is very likely to be a reality for all those wishing to book by May.
What’s interesting about the Saga case is that they are not able to make such a requirement of their own staff. Crews are often drawn from many locations via agencies and as such many different nationalities, cultures and beliefs from countries that may not be geared up for vaccination. To resolve this Saga will be introducing compulsory tests and ensuring all staff are quarantined for two weeks before setting sail so as to be as sure as possible that they keep any transmission onboard at bay.
Brian Kropp Head of HR Research at Gartner advisory group confirmed that 93% of employers were actively discussing the issue of vaccinations with their staff which seems encouraging albeit in the US there is a developing trend for incentivisation in cash or material goods in return for being vaccinated.
Such moves in the UK could result in claims being brought by those not having the jab as a breach of their rights under the Equality Act. It’s therefore unlikely we will see such incentivisation happening over here. The matter of managing a generationally diverse workforce with varying levels of immunity could prove challenging enough but add to the mix a refusal to be vaccinated and employers have a dilemma.
Whilst existing laws serve to protect our individual rights a pandemic, fake news and fear of death create a combustible cocktail of concern.
Recommendations
- Reach out to your workforce and reiterate the policy of your business.
- Offer support, access to information and help with any concerns or anxieties.
- Evaluate the exposures of staff both to colleagues and others such as customers and ensure they are protected within all reasonable measures that can be applied.
- Be mindful of GDPR and the data you hold on staff relating to Covid-19 it should relate only to their working relationship and proportionate.
- Be upfront with your approach and explain why you are requesting information or action from your staff.
If in doubt on any points regarding GDPR and data management, click here.
Written by Robert Gibson, Senior Consultant - Employment Law
Robert is a Senior Consultant at Samuel Phillips and specialises in employment and business matters. He advises in relation to employment and shareholder disputes, including pensions and related issues.
