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Novax Call, In or Out?

Djokovic - Australian Open

Thursday, January 13, 2022

Yet again International Tennis has become the centre stage for a storm involving one of its top players. Last year Naomi Osaka’s treatment at the French open drew criticism from many inside and beyond the Tennis world creating an impression that those administering the sport were out of touch with the pressures and welfare of players.

Now the publicly unvaccinated Novak Djokovic has drawn huge attention having been refused entry to Australia with the government overriding his approved visa and being held in a quarantine hotel in Melbourne.

Access for the player had appeared to be granted by the tournament organisers however the news of the Men’s no.1- and 9-time champion at the Australian Open, given free passage when others were required proof of vaccination created a media storm.

At a hearing arranged Monday 10th January the judge, Anthony Kelly ordered the immediate release of the tennis star from detention. Djokovic arrived in the country with an approved visa and had complied with all necessary formal requirements albeit the contentious point rests with the granting of such clearance to a visitor who is unvaccinated when that clearly breaches the current rules. The exceptions for permitting an unvaccinated entrant require a medical exemption which Djokovic presented however the reasoning appears questionable. Exemption was granted simply due to his prior contraction of Covid. This is not an understood or accepted reason for permitting access. The test usually rests with proof of allergic reaction to the vaccination or risk to health greater than Covid if the individual were to be jabbed.

As a result of this confused position there remains a risk that he still may not have his chance to play in the Australian Open, due to start 17th January, as Immigration Minister Alex Hawke could still cancel his visa on new grounds.

Djokovic has since admitted making a false declaration on his travel form prior to entering Australia.

He said his agent had made a mistake when filling in a section of the form that covered his recent travel history. The form stated that he had not travelled in the 14 days before his arrival in Australia.

But recent reports suggest the 34-year-old had travelled to Serbia and then to Spain prior to the trip.

Djokovic released a statement aiming to put the record straight.

“My agent sincerely apologises for the administrative mistake in ticking the incorrect box,” he wrote. “This was a human error and certainly not deliberate.”

“My team has provided additional information to the Australian government to clarify this matter,” he added.

Australia’s Border Force, the nation’s immigration officials, said on Tuesday they were investigating whether he had made a “false declaration” – which would be grounds for a visa cancellation.

As it stands the outcome remains uncertain however yet again those in charge of organising an Open Tennis tournament have become the focus of significant negative coverage and to date failed to address the concerns of the public and essentially the Australian government.

However this drama ends there will be bad feeling and it is no small way due to the societal need to promote the vaccination programme. Conscientious objectors to being jabbed such as Mr Djokovic may be viewed as a martyr by those who also fear and reject the vaccination process. If permitted to play it could suggest a bending of strict rules to accommodate an individual due to their status in the game – there is no winner here.

One simple but unlikely settlement would be for Novak to be vaccinated but given his strength of feeling that’s very much a wish rather than a realistic proposition.

Lessons for Employers

It’s hoped that in your “day to day” running of the business you’ll not encounter such high profile and contentious matters. There are however important lessons to be learnt and measures which may help you avoid similar localised problems.

Unless subject to legislation e.g., *frontline healthcare workers (see below), it is at present not compulsory for individuals to be vaccinated and therefore this presents employers with a challenge when faced with anti-vax employees. It is a fundamental right for UK citizens to have the power of choice over what they decide and that can include a refusal to be vaccinated. In certain circumstances a refusal may be due to a genuine health issue such as an allergy or other underlying condition. A medical practitioner may advise that taking the vaccine is a greater risk than catching Covid. Whilst rare these cases are known and on record.

A further complication for employers with regards to un-vaccinated staff is the essential retention of an individual’s privacy as it relates to their medical history.

You can see that we are in very difficult territory as an employer especially if we try and impose a blanket ban on the un-vaccinated or demand their provision of a full vaccination record to qualify for their ability to attend work. That said Pimlico Plumbers made a very public declaration last year by stating in their recruitment adverts they would only accept fully vaccinated employees. This “no jab, no job” position introduced by the business owner Charlie Mullins presents something of a risk and likely to encourage discrimination claims.

There is little to refer to as case law in the UK as the Tribunal backlog is sufficiently severe as to suggest the matters will not be brought to a judge this year. In assessing the experience in Europe, French courts, who are a little further on in tackling employee claims, have dealt with a number of a cases but in all appear to have found in favour of the employer. There is a high burden of proof concerning harm and detriment to an individual by their employer which is more than matched by the consideration that the employer is attempting to protect the workforce by ensuring ALL are duly vaccinated and protected from Covid-19. ‘General consensus on the vital importance of protecting the population against diseases which may have serious consequences for the health of the individual and, in the event of serious epidemic outbreaks, disrupt society.’

Despite the position above, vaccination requires an individual’s informed and voluntary consent and cannot be forced. If employees refuse vaccination, to discharge their health and safety duty, the employer may need to consider other steps that can be taken to protect them. An employer could consider disciplinary proceedings for failure to follow a reasonable instruction in certain settings (such as health or care) where an employees’ refusal has serious consequences, but this approach is not without risk.

Any employers considering this approach must be sure to follow any government guidance that emerges and seek specific legal advice, and should bear in mind the following:

  • Warning all staff that vaccination is likely to be a condition of employment
  • Reviewing employment contracts (remembering that enforcing a change without employees’ agreement would be in breach of contract and employees could resign and claim constructive unfair dismissal)
  • Any incentives offered should not discriminate against employees with protected characteristics (such as age, disability, or belief) who have reasons for not having the vaccination
  • Communicating to any employees who must travel for work especially to countries with known high levels of Covid, that the vaccine is likely to be a necessary job requirement
  • Any vaccination strategy must include exceptions for employees who cannot accept the vaccine due to medical or possibly belief reasons

*Certain front line facing health professionals will soon be confronted with the prospect of looking for new jobs if they are not vaccinated, deadline 1st April 2022 (as outlined in our first article this is subject to a Judicial Review). (Front line health and support workers in CQC regulated care homes have been obliged to be fully vaccinated from 11th November 2021.)

If in any doubt over the position to adopt in this difficult circumstances we would strongly suggest you take qualified legal advice and ensure your policies and procedures are robust, well drafted, consistent and communicated to all staff.

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