What are the legal pitfalls for an employer in insisting that staff are vaccinated?

Posted in : Seamus Says - Employment Law Discussion on 2 July 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: No Jab No Job, Covid-19 Vaccines, Philosophical Belief

'No jab, no job' is kind of the tabloid expression used for compulsory vaccinations in the workplace. It's kind of been lingering in the background since the vaccinations came to us. But last week, it was confirmed that care homes in England would be making it a compulsory for all their staff to be vaccinated. They would be required by law to do that.

So, initially I suppose the thoughts are, "Well, they're in a medical environment. Maybe that is appropriate". But it is starting to creep into other industries. We've got Bank of America in London saying their staff can't come into the London office if they're not jabbed. We've got Bloomsbury Publishers, famous for the "Harry Potter" series, of course, saying you can't come in unless you're jabbed. And then we've got Pimlico Plumbers, who are always up for a test case, who have been quite savvy about this particular area since vaccines came about. They're advertising jobs which stipulate you must be jabbed.

So, Seamus, is this coming our way? Is it crossing the Irish Sea do you think?

Seamus: I mean, it is interesting to see the various ways that employers are tackling the issue. Definitely over the webinars that we've done over the past 12 months, or maybe longer than that when we were hopeful of a vaccine, and now that we have it, certainly the attention is turning to whether or not they should be compulsory or not.

On our last webinar, we talked about the position of the Human Rights Commission in England and the recommendation that it would be fair to bring in the compulsory vaccination for those working within a care setting. I don't expect that we're going to have a situation like that that will arise in Northern Ireland. And I do think that the temperature of that might change if we end up in another surge and if there are issues that arise in relation to hospital admissions and things like that. I know that we're all keeping a close eye on how that is all working across the water.

But the important point, I suppose, is that we know that Robin Swann, our health minister, has said that he wouldn't be in favour of bringing in compulsory vaccinations within Northern Ireland. He talks about Northern Ireland being in a different place to that in England.

So at this moment in time, it certainly doesn't seem that we would have that situation arise. But I do think that could change in the future, and I think it's something that we'll need to keep our eyes open to.

But I think that it will be in and around looking at maybe if there's a rise in cases in care homes and things like that. And there are interesting figures about care homes and the requirement to have at least 90% of residents vaccinated for there to be proper efficacy of the vaccine, and about the staff as well.

Look, it's that aspect of compulsory element and it's just not that all people are going to be willing or that all people are going to be able to get the vaccine. There has been a position in England to say that if you are medically exempt, you won't be affected. But what they're saying is that there will be a 16-week lead-in period for anybody that hasn't had their jab to have it, or they face being redeployed away from frontline care or possibly losing their job.

So serious ramifications arising from this compulsory aspect. Hopefully, we won't have to cross that bridge, but we'll have to wait and see.

Christine: Yeah. I see a few questions coming in on this, and hopefully this will feed in. So, somebody is asking about health conditions and philosophical beliefs. I suppose that the question is, "What are the legal pitfalls for an employer in insisting that staff are vaccinated?"

Seamus: I do think that there are circumstances where there will be a perfectly reasonable and rational reason for someone that doesn't take the vaccine. And it could be down to the fact of some religious reasons in relation to the contents of the vaccine. It depends. There is that philosophical belief and we know that that has been broadened out recently as well in relation to case law.

Look, the pitfalls are going to be that if someone is dismissed in relation to their failure to take the vaccine, you could be looking at potential for constructive dismissal claims. You could also look at potential discrimination issues that may arise around for the likes of pregnant employees. There seems to be specific guidance in relation to if somebody has a pre-existing medical condition or down to their religious belief.

And the sort of side note issues as well in relation to that is that we've spoken before about employers requiring information from their employees about the vaccine, wanting to know what their attitude is, if they've had the vaccine, and on those data protection issues that arise in relation to that information, about asking it and about retaining information as well in relationships to the employees. Ultimately, that is private medical information.  But there is certainly the potential of legal pitfalls.

Helpfully, and I think Helen maybe had some involvement in this as well, the Labour Relations Agency have put together another excellent guide just released in May relating to the position in and around vaccines and what employers can and can't do. It's entitled "COVID-19: Working Through This Together. A Practical Guide to the COVID 19 Vaccination and the Workplace".

And in particular, the really great thing about the guidance is that there is a draft vaccination policy contained within it. For me, I think that's a starting point for employers.

Christine: Yeah. We'll include a wee link to that document as well in the follow-up email that we send out.

Another great question has come in. Do you think we can draw a distinction for making the vaccine compulsory to new staff versus making it compulsory for current stuff?

Seamus: Well, I suppose that will really come down to . . . the background to that question is really about the contract. I have come across situations and I have given it thought about what could a contract say in relation to the requirement to have a vaccine. Those sorts of things will come down to the justification and the reason for requiring a vaccine. You could still be very much looking at the same issues.

It was one of the matters that Pimlico had said, that any new staff that they were taking on, they wouldn't take any new staff without them having the vaccine.

Again, you're still going to be faced with those same issues, I think, when it comes to . . . maybe not the unfair constructive dismissal aspect if they're not yet working for the organisation, but still those potential discriminatory issues relating to their religious belief, their philosophical belief, if they have pre-existing medical conditions and all those sorts of issues are still going to be in the round.

My advice is that you'd need to tread carefully, and really, you'd be looking at "What is the justification? What is the requirement here?" I think if you were sitting in an industrial tribunal here, that's where your mind would go to. Is this a reasonable step by the employer?

Christine: Yeah. I can see someone has asked, "Can we ask staff to declare reasons they won't take a vaccine?" I mean, my first thought would be that would be your data protection point. So, you can certainly ask the question, but you couldn't compel people to answer it. What would you think, Seamus?

Seamus: Yeah, I agree. Look, at the same time, we're all entitled to our privacy and we're not obliged to provide carte blanche to an employer in relation to all of our thoughts and opinions and beliefs.

I mean, the question could be asked. But I know of individuals that I've been approached by who have said that the employer is not leaning on but is encouraging and is keen for everyone to get the vaccine and, "I'm not keen to take it and I want time to give consideration. I want time to pass because I'm concerned in relation to allergies that I have".

I think those are tough discussions to have with an employer, and an employee might feel very alienated on the basis that they haven't taken their vaccine. They may feel strongly of their right not to take it, but they may feel awkward and maybe just concerned about notifying people that they haven't had it.

Christine: Yeah. So, what sort of practical steps could an employer take to kind of smooth the way or encourage in a softly-softly approach, I would say? What would you advise?

Seamus: Well, Helen could probably pick up a bit better than I could on that. But certainly, the guidance that does talk about this aspect of the production of a policy, the ability for an employee to be referred to a policy within the organisation.

Again, same as the menopause point. Employers do have a legal duty under the Health and Safety at Work Order in Northern Ireland to make workplaces safe and eliminate risks to health, and that does provide a justification for the encouragement of people to be vaccinated.

Certainly, as it stands here at the minute, I can think that there is no legal insistence to say that somebody has to have the vaccine, that it has to be compulsory.

But just those steps in terms of having good communication with staff in relation to the vaccine. You can encourage it. And maybe lift as well some of those borders for people, if people are concerned about having to take time off traveling. Those more practical aspects, what can the employer do to assist in relation to facilitating vaccines?

I suppose the other aspect is having references within the policies to good sources of information where clarity can be provided. And the guidance talks specifically about those myths being lifted by sound, credible medical information also.

Christine:  I was going to say, would it be a bridge too far to email around or distribute information from scientific sources? Would that be too pushy, do you think? Or do you think that's a reasonable approach to take?

Seamus: I think depending on how it's presented. But I do think that that is a prudent step certainly in the middle of a pandemic, or hopefully coming out of a pandemic, and given your health and safety requirements at work. I would see it as a prudent step.

Christine: Yeah. Brilliant. I'm just checking to see. I think we've covered most of the questions here. Brilliant. Thank you very much for that.

This article is correct at 02/07/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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