Q&A TRANSCRIPT

CAN UK COMPANIES LEGALLY REQUIRE CURRENT OR PROSPECTIVE EMPLOYEES TO BE FULLY VACCINATED? (02:03)

I think it’s a really interesting time to be asking yourself that question, because it looks like it’s been leaked this morning, that the UK Government are about to announce that it’s going to be mandatory for NHS frontline staff to have been vaccinated as a condition of employment. So we’re expecting Sajid to be standing up probably this afternoon and making an announcement as to what that actually means in practice. So who would classify as frontline staff? Will there be exemptions, etc. And this is a couple of days before it’s about to become a legal requirement for people in the care sector to be vaccinated. So we’ve had various conversations over the months about this, but with effect from the 11th of November, if you’re working in the care sector, you’re going to need to be vaccinated. And a lot of different countries are taking different approaches to this question. But in the UK, we’ve held the care sector that works it now looks like we’re moving on to the NHS, you know, these are frontline staff, does that naturally move that on to the office environment?

So if we’ve got people working in central London in an office block, are there the same risks in terms of COVID transmission that there might be in the NHS and the care sector? And the answer feels like probably not at the moment. So will a UK employer working in their office block in central London, be able to justify a mandatory vaccination policy in the same sense that the NHS or the care sector can? And this is where it becomes difficult, because for an employer, to say you, a member of staff need to be vaccinated, they need to be mindful of what are they going to do if the individual says no. So in the UK, if an individual’s got more than two years’ service and you dismissed them, they could sue you for unfair dismissal. So businesses are going to have to say, okay, well, what’s our fair reason for dismissing this individual? Well, it’s going to be the fact that they’ve not agreed to be vaccinated. So what does that fall under?

And then you’ll be familiar with how the UK employment law works. But there are five potentially fair reasons for dismissing someone. So conduct, capability, and so on. And the fifth sort of capital one is some other substantial reason. So you’re going to have to demonstrate that it’s a substantial reason, substantial justification for requiring someone to get vaccinated. And if they don’t, that their employment shouldn’t continue. Well, if you’re working in an office block, why is it so important that they’re vaccinated? Well, if you can demonstrate that people are in close proximity, it’s not reasonably practical to socially distance, to wear masks, you know, there’s a higher risk of transmission of COVID, then you might say, well, bearing in mind our obligations in terms of health and safety to ensure safe workplaces, we think it’s appropriate everyone’s vaccinated. We’re going to mandate everyone has to be vaccinated. So then you’re potentially looking at dismissing people that feels high risk. That is certainly the point where clients are coming to us and taking specific advice. And the advice at the moment is a blanket policy on people being vaccinated is potentially high risk, because you’re not allowing for any exemptions. So if we take the care sector, as an example, of where in the UK, we’re mandating vaccinations, there are still certain exemptions. So these tend to be medical exemptions. So it might be that you’re undergoing short term medical treatment, you may have a longer term condition where there might be an adverse reaction to the vaccination. That’s an exemption. And you have to put other precautions in place to protect the patient’s the workforce, public from COVID, regular testings, masks, social distancing, etc. So your question, can an employer mandate vaccinations? I think it’s going to be really difficult at the moment for most of the businesses that we work for to mandate it without also building exemptions into their policy.

WHAT HAPPENS IF A HEAD OFFICE IS IN ANOTHER JURISDICTION – HOW DOES THAT AFFECT THEIR UK OPERATIONS? (6:46)

So I think there are two parts to that, I mean, firstly, taking the US as an example, I know that Biden’s policy of requiring private sector employers to shoot vaccinations is actually stalled somewhat, and there are challenges and that’s being reviewed. But a lot of the policies in the US have mandated vaccination or regular testing. So coming back to the point I made earlier, just a blanket policy of having to be vaccinated is potentially high risk. A policy if you have to be vaccinated, or regular testing or the precautions is lower risk. And that’s where most other jurisdictions are following. But where we’ve got lots of clients who might have had offices in Germany, Australia, China, US wherever it might be, if they try and impose their standards in the UK, then there are still risks, because ultimately, if that person is employed in the UK, it’s the UK employment tribunal. And it’s the UK standards that are going to be used to assess the reasonableness or otherwise of that policy.

WHAT GROUNDS COULD A COMPANY BE SUED IN THE UK? (08:01)

So I mentioned earlier, unfair dismissal. So this is your member of staff who hasn’t been vaccinated, has been working with you for more than two years, and you decide you’re going to dismiss them, you know, you’re going to have to take careful advice in those circumstances. But we may get you to a position where you followed a fair procedure and we’ve dismissed, they could potentially bring a claim for unfair dismissal. And that’s a claim for their compensation for loss of earnings and what’s known as a basic award. I’m sure we’re going to be seeing lots of those sorts of claims in the coming months; the employment tribunal system here in the UK, is pretty swamped, low on resources claims aren’t working their way through quickly, so it’s going to be some time.

The other risk is risk of discrimination. So this can be someone from a job applicant through to an employee who has been with you for a couple of weeks, months or years. The point is you can bring a discrimination claim at any point in that employment cycle. And the sort of claims that they might bring is that actually the policy that you have to be vaccinated, indirectly discriminates against people with specific protected characteristics. So let’s just play that through with an example. Well, if someone has a disability, that means that they can’t have the vaccination. Then if you have a policy that says everyone has to be vaccinated, it’s going to be harder for that disabled person to comply with that policy, because they’re not going to be able to get vaccinated. What you’re not saying as an employer is we are not employing disabled people. It’s not a blanket policy against disabled people. But you’re putting a policy criterion or practice as a PCP in place that makes it harder for that disabled person to meet your expectations. So you’re indirectly discriminating against them. So if you have a blanket policy, so you have to be vaccinated, even if it’s an applicant, the applicant potentially could say you’re discriminating. And then it would be on the employer to show that there was what’s known as an objective justification for that PCP. So we had to ensure that everyone was vaccinated because of the risk of COVID spreading amongst the workplace. However, in the care sector, they’ve already allowed exemptions for people with disabilities. So I think it’s going to be very difficult for a private sector employer not to have similar exemptions as part of its policy. And I expect this afternoon, when we get the announcement from the government about NHS frontline staff, there’ll be similar exemptions for people with disabilities. But it doesn’t really stop there. Because I refer to earlier, protected characteristics. And you could also have sex, race and religion etcetera that will creep into that, well, why are they relevant? So just a very quick example, you might have someone who’s pregnant, who’s refusing to have the vaccine. And although the current public health guidance is that it’s safe, they might say, well, it wasn’t that long ago, that it wasn’t safe. So I’m going to sit on the fence for a few months, I’m going to isolate, I’m going to take precautions, and I’m not going to get vaccinated. So if you’re insisting on me being vaccinated for this role, you are indirectly discriminating against me as a female. That’s going to be I think, quite a difficult claim to bring. But I wouldn’t necessarily want to be acting for the employer the wrong side of that claim. You know, what might be more proportionate is to say, okay, well, we’re gonna offer you the job to condition that you’re vaccinated, or the regular testing. But if you’re not bought into that whole exemption of regular testing, it leads to Satan. Okay, we’ll put precautions in place for the next seven months of your pregnancy. And then however long you’re gonna be on maternity leave, and then at that point will expect you to be vaccinated or do whatever the exemption is. So there are certainly risks unfair dismissal, discrimination, how much of a genuine risk they are is yet to play out in the UK courts and tribunals.

WHAT DOES YOUR CRYSTAL BALL PREDICT? (12:18)

Ah, I just think that’s such an impossible question, isn’t it? I mean, did I think that the government would be legislating for people to have to be vaccinated in the care sector? I didn’t think that I’d ever see that happen. And then we’re talking about the NHS. I think there’s been huge developments in terms of the treatment of COVID. And Pfizer came out in the last week in terms of medication that could be taken, hopefully, to avoid hospitalization. And we’ve just seen the travel industry shares soaring because people are feeling more confident that they’re going to be able to travel. So as the sort of medical advances develop, the requirement to have a vaccination might start to dwindle. So then it’s going to be harder for an employer to say, you must have a vaccination, because the employer will say, well hang on a moment why you’re saying you want to protect members of staff, but can’t guarantee that Pfizer pill. Or you’re saying I can’t, because I’m going to spread COVID that I sit in my own office, and if ever I have to go into the collective meeting, I’ll just wear a mask. So the direction of travel seems to be a level of scepticism about the vaccine. I mean, we’re seeing that a lot play through in America and in the UK, people being termed anti-vaxxers. And that seems to be growing a bit of traction is becoming quite a polarized political debate. Are you going to convince the 30% of people who haven’t been vaccinated in the US to get a vaccine when there’s other developments in treatments to COVID? Possibly not? Do governments want to move quickly on this and ensure that people are vaccinated? Sort of pre-Christmas? I think they probably do. So we might see some short term measures that really try and force through the last few people to get vaccinated. But then those arguments might start to dwindle as we go into 2022. Who knows?

I think the clients are naturally worried about the risk to their workforce and themselves of COVID. And we’ve come from a place where lots of people have been working from home, people are isolating, but we’re seeing a gradual move back to the office working in the UK. They’ve got Plan B, which will revert to people working from home where they can and they want to avoid that as far as possible. So the mood music is very much get vaccinated, we avoid Plan B, you know, we can all work in this hybrid environment where we can work a bit from home and a bit going into the office. And employers are starting to ask themselves well, if we got people coming in without a vaccination, are they putting other people are at risk? So should we ask people whether or not they’re vaccinated? Now, is it incumbent on us as employer to understand who’s not vaccinated? And there are cases not that I’ve dealt with directly, where some employers are separating people who are vaccinated or not. So if you’ve got a canteen, for example, you might have half that are vaccinated, the other half that aren’t vaccinated, you might have a requirement that vaccinated people can’t come into certain communal spaces, or they have to work from home. But this all comes back to whether you can ask people about their vaccination status. And in the UK, we’ve got really strict data protection rules that would say if you’re asking people about their health data, special category data, you need to make sure that you’ve got the proper legal bases for asking for that data, and then taking proper precautions on how you’re going to store that data. So clients are having to revisit their privacy policies, whether that’s part of the recruitment or for employees, they’re having to look at their systems, their retention policies, what justification can they ask, how long can I keep it for? So then some clients will revert to, we don’t need to know someone’s vaccination status for a purpose our systems, but we want to want to see a COVID passport as they come into the office environment, or we want to see a negative test when they come in. So data protection, so the data you’re collecting, how you’re keeping it, and for how long? It’s such an important question for employees to be asking themselves.

WHAT ARE YOUR FINAL WORDS FOR PEOPLE WHO JUST WANT TO DO THE BEST THEY POSSIBLY CAN FOR THEIR BUSINESS? (18:16)

I mean, it goes back to if as an employer, you’ve carried out your COVID risk assessment, you know, it’s gonna be a really critical document, and everything is going to flow from that document, you do your COVID risk assessment, and establish that there is a genuine risk of COVID being spread within the workforce, and that you need to take precautions to stop that. If the answer you come to is that people need to be vaccinated. If you have a blanket policy of vaccination, we need to be mindful that there are quite high risks there for your existing staff in terms of unfair dismissal, and new and existing staff in terms of discrimination. So rather than having that blanket policy, it’s about assessing, how might you be able to flex that to mitigate those legal risks. So like in the care sector, can there be medical exemptions, so you’re mitigating that risk of disability discrimination. So working with your various teams, stakeholders to get your COVID risk assessment correct. Understand the latest data, and then communication with your staff, you can jump both feet into introducing a particular policy. But all of the guidance that’s come through, particularly in the UK, throughout the pandemic, is communicate, communicate, communicate, and if you’ve got a unionized environment, it’s gonna be really important to bring those unions or elected representatives as part of that decision making process. If you haven’t, just speaking to the staff, proposing the policies explaining why it’s going to be important, and getting them to buy in. So I’ve got clients who’ve done this and ultimately, the decision to require people to be vaccinated comes from a good place. You know, this is not being difficult, you know, as an employer you’re not looking to profit from any of the pharmaceutical companies selling more jabs, whatever it might be, comes from a good place and want to be able to protect your workforce and the public. And it’s just getting them to understand that where you’re coming from, and why you’ve landed on vaccination being the appropriate precaution. But most clients are looking at having some exemptions within those policies. And just working really carefully with your legal team to make sure that you’ve considered all of the risks, whether it’s sex discrimination, race discrimination, philosophical belief, disability discrimination. So you pre-empt those claims. And then you’ll be in a really strong position to defend them if they come through.

The webinar transcript has been edited for clarity.

Thank you Greg Jones, Partner at Greene & Greene solicitors, for sharing your expertise. If you need more advice please contact Greg directly: gregjones@greene-greene.com.