By David Bradley, Head of Employment at Ramsdens Solicitors (www.ramsdens.co.uk)
Lawyers are often considered to be two handed; on the one hand this, on the other hand that! “Just give me a view” they scream. Here it is, the answer is YES.
However, you know better than to believe the YES is completely unqualified and there are some caveats, but as an employer in the sector you should be able to reach that position if you wish, in most cases.
Let’s start from the position all employers are in. They are obliged (by law) to provide a safe place of work for their employees. They are also obliged to avoid endangering those that come into contact with the business and the employees of that business, for example customers and clients. Think of the sign that the supermarket floor may be wet (and slippery) for a benign example.
Care sector businesses have exactly the same obligations regarding their employees, contractors and their clients (residents).
There will be employees who wish to refuse a vaccine. What can the employer do? The following analysis is based on an assumption that a vaccine is available to the individual. We look at the most likely reasons for refusal;
1. YOU CANNOT FORCE ME, MY CONTRACT DOES NOT ALLOW YOU TO INSIST ON A VACCINE.
Undoubtedly an express provision in the contract is helpful and places employers in a strong position to insist and in the absence of good reason for refusal (see below) there would be a fair basis, ultimately for dismissal. Without an express term the employer will rely on the implied terms in the contract that an employee will act reasonably in making themselves available for work (i.e. take reasonable steps to avoid illness, injury or other impediment to discharging their duties) and not to endanger colleagues and clients.
In a sector sensitive to Covid issues such as Care it is entirely foresee- able that a colleague may refuse to work with an unvaccinated individual or that a client will refuse to be treated by them. Recent data showing the dramatic reduction in the transmissibility risk following a vaccine is extremely helpful to employers should they decide that, despite consultation and persuasion, an employee continues to refuse to be vaccinated. A further and broader based business issue might be where a business would be rendered uncompetitive in a market where clients demand their carers be vaccinated. How would your business compete when a rival organisation could reassure clients that all their staff had been vaccinated.
Ultimately, continued refusal by an employee to be vaccinated may lead to a dismissal. The fair reason for dismissal is likely to be “Some other Substantial Reason”, the fifth stated fair reason for dismissal set out in the Employment Rights Act 1996.
2. I HAVE A MEDICAL CONDITION OR STATUS THAT PREVENTS ME FROM RECEIVING THE VACCINE.
This is a valid reason for refusal and the principal caveat to the broad view expressed at the start of this article. Where the reason stands up to scrutiny, employers should respect this. The employer should act in the same way as if the employee is disabled and seek to make reasonable adjustments to allow the employee to continue working. This may mean a change to role or duties to reduce exposure to colleagues and clients. Consultation with the employee is key. At the end of that process if there is genuinely no reasonable adjustment that can be made, dismissal will be an option.
3. IT WOULD BE A BREACH OF MY HUMAN RIGHTS TO INSIST ON A VACCINE.
The first lawyerly point is that in the private sector, Human Rights are not directly enforceable against employers but should the employee take the matter to a Tribunal then the Tribunal can take human rights into account.
Clearly, no employer or anyone else can force someone to have a vaccine. That would be a breach of human rights in itself and also, probably a criminal offence. It should be kept in mind that human rights operate both ways in a Care sector scenario. Clients and colleagues have the right to be protected from harm too. The area of human rights most pertinent is that of protection from discrimination. See next. Aside from that it is difficult to see a human rights defence affecting an employers decision based on the issues set out at 1. above.
4. TO INSIST ON VACCINATION WOULD BE AN ACT OF DISCRIMINATION.
Employers do need to be mindful of this issue but the basis of dis- crimination relied on by an employee should be clear. If the employee is of a recognised faith that condemns the receipt of a vaccine then the situation will be similar to that regarding a medical condition. Investigation and consultation will be key, consideration of alternative roles and adjustments would need to rule out (reasonably) before an employer could justify a dismissal.
In summary employers should be clear on their risk assessment and business rationale for insisting on the take up of the vaccine, brief staff as to that rationale and then deal with objections on a case by case basis. Employers should not move towards dismissal before taking professional advice.