No jab, no job: Is this the right approach for rural businesses?
Just as furlough canters towards its final furlong, and rural businesses look forward to long awaited ‘back to work’ normality, could it be that only now they face the toughest dilemma the pandemic has yet delivered?
That question is whether the demand to all workers should be ‘no jab, no job?’
Does the wise employer enforce vaccination across their workforce, or let individuals assert their right to choose?
Mandatory vaccination policy
For many businesses a mandatory requirement for staff to be vaccinated with the COVID vaccine is a ‘no brainer’. This is obviously the case for businesses, such as care homes, which look after vulnerable adults. But it could also extend to many rural businesses, where for instance members of staff themselves, or their family, may have underlying health conditions, making them vulnerable to the worst effects of COVID if they catch it.
In the last few weeks we have seen several large companies announce that they will not be employing or recruiting anyone who has not been vaccinated.
The benefits of this policy appear to be widespread: to prevent employees from falling ill, from passing on the virus and to ensure they do not infect clients or customers. User confidence right now may be the most important factor for businesses, which need to be more attractive than ever to the customer, if they are to survive 2021.
But is that policy fair, where employees are not customer facing? Social distancing may continue to be viable on farms, in cafés, retail outlets, factories and warehouses for example, which raises the question as to whether enforced vaccination is reasonable. Or will production efficiency drive employers to require this further step, post lockdown.
So what is the legal position for employers? We know that COVID vaccination is not mandatory in the UK. Individuals have a right to choose; it is a human right to do so. However this must be balanced against wide reaching health and safety regulations, which impose a duty on all employers to provide a safe and healthy place of work for all.
In addition both Government and businesses have an ongoing obligation to ensure workplaces continue to meet COVID secure standards. The truth is that despite the successful vaccination roll out, with more mutations appearing, the threat of further pandemic outbreaks continues to be a risk, and will remain so for many months to come.
However, at the same time, the Equality Act 2010 dictates that employers may not directly or indirectly discriminate against any worker for reason of a ‘protected characteristic’.
Might an employee or worker claim their right not to be vaccinated is based on a religious, political or moral belief that amounts to such a protected characteristic? To dismiss or fail to recruit any person because of that belief, could amount to an act of unlawful discrimination. Would a compulsory vaccination policy therefore be unlawful and lead to many and expensive Employment Tribunal claims against employers?
Not, we say, if that policy can be reasonably justified. This however will turn on the particular facts of each case. In some sectors where jobs require extensive contact with 3rd parties, the desirability for the vaccine is greater. So it would seem a fair policy in healthcare, care homes, teaching, the police and emergency services and even retail and hospitality industries. Less so in non-client or customer facing jobs or those that can continue to be carried out remotely.
And then what about testing? Will those who refuse the jab also decline to cooperate with testing and how can a rural business deal with that?
Certainly it would seem reasonable for businesses to require regular COVID testing for any worker who declines vaccination. But again, any such policy needs to be carefully considered on justification principles. Is there another way or is it a legitimate and proportionate means to an end? Can exceptions be made, or is zero tolerance leading to disciplinary action and possible dismissal a necessary sanction for non-cooperation.
Our conclusion is that there are many potential legal pitfalls and any workplace vaccine or testing policy requires careful and continuing consideration. We are certain no rural business wishes to become a (budget breaking) Supreme Court test case; to this end we advise taking expert advice when considering new COVID policies.