Jabs For Jobs ' Covid Vaccines And El/Pl Considerations

• Published date: 29 January 2021
• Subject Matter: Employment and HR, Coronavirus (COVID-19), Discrimination, Disability & Sexual Harassment, Health & Safety, Employment and Workforce Wellbeing
• Law Firm: BLM
• Author: Mr Chris Fletcher

At the date of writing, there are three COVID vaccines licensed for use in the UK, offering the only realistic exit from a cycle of tightening and loosening restrictions on everyday life. First to be licensed was the Pfizer/BioNTech vaccine, followed by the Oxford/Astrazeneca vaccine and more recently the Moderna vaccine. There has been much press reporting of a number of surveys which suggest that voluntary take-up of the vaccine may be lower - in fact much lower - than the level which the scientific community would regard as providing broad coverage across the country, and the UK government has indicated that it has no intention of making vaccination mandatory.

The position of employers

So where does this leave employers, risk assessing their businesses and seeking to discharge their duty to take reasonable care for the health and safety of their employees, and of course their customers, suppliers and other organisations into contact with whom they come on a day-to-day basis? Pimlico Plumbers is an organisation which has not shied away from controversy in relation to employee relations in recent times, and is a name now synonymous from its association with legal precedents relating to gig economy workers. It is often said that no publicity is bad publicity and the company found itself back in the news at the end of last week with reporting of its intention to make COVID vaccination mandatory for its staff. What issues relative to EL and PL coverage particularly does this raise?

Firstly, and perhaps obviously, on the basis that it would be an assault and battery forcibly to vaccinate staff, vaccination could only be "mandatory" in the sense of attracting adverse consequences in the employment relationship for failure to comply.

From the perspective of employment law, it seems unlikely that many employers will be able universally to compel employees to have the vaccination. However, much will be linked to the employer's risk assessment relating to its own business - for example organisations operating in the health and care sector, or in other areas where close contact is involved, such perhaps as some beauty treatments, hairdressing and such like, may have a slightly different risk assessment than for example a financial services organisation in which the majority of staff can if necessary continue to work remotely.

It may very well be that in some circumstances an employer's insistence on vaccination may be a reasonable management request. The fundamental purpose of course is to protect other staff and members of the public. Perhaps paradoxically, the protection of the individual member of staff by the vaccine is incidental. This is a familiar concept; when the wearing of masks first began to be encouraged in 2020, before it was mandatory in certain situations, it took a concerted public awareness campaign to cement the message that the purpose was not the protection of the wearer, but rather protection of others from the wearer. The point is the same in relation to vaccination.

Statutory discrimination pitfalls and indemnity policy risk

The issue of a reasonable management request is far from the end of the story...