By Matt McDonald, employment disputes partner at law firm Shakespeare Martineau (www.shma.co.uk)
As the UK vaccination program continues and the hospitality and leisure sector prepares to reopen fully, there are growing concerns around how to best protect employees and residents.Although vaccination adds a universal level of protection, forcing current or future employees to receive the jab, or refusing to keep or hire them based on their decision, is fraught with risk.
Although a grey area – we are in unchartered territory after all – if the sector wants to reopen safely, this is one of the challenges that hospitality leaders will face in the coming months. So, what should businesses that are looking at putting in place a vaccination policy consider?
Current guidance does not support mandatory vaccination, and instead states that employers should aim to support their employees’ decisions, whether they decide to take the vaccine or not. However, companies can choose to implement a strict vaccination policy that makes them compulsory and imposes sanctions on those who refuse. If this route is chosen, businesses must be aware that any dismissals are likely to lead to employment tribunal claims.
If a job role cannot be undertaken safely without a vaccine, then there may be legal grounding for it to be a requirement. However, in sectors like hospitality and leisure, businesses will have a harder time proving that a role cannot be done safely without the vaccine than, for example, front line healthcare workers and thus, a much harder time justifying dismissal.
Should an employee refuse the vaccine, the best course of action is always attempting to understand their reasons with a view to persuading them to change their mind, before then deciding whether to proceed with further action including dismissal.
There are many reasons people may choose not to have the vaccine, such as being pregnant or on religious grounds and it is important not to be dismissive of these claims, but rather be sympathetic towards the individual and maintain confidentiality.Another oft-cited reason is the lack of knowledge as to the side effects of the jabs, which was until recently a theoretical argument but has been given significant credibility by the blood clotting concerns associated with the Astra Zeneca jab.
Unfortunately, if the business does choose to proceed with sanctions on employees who refuse to have the vaccine, potentially resulting in dis- missals, the likelihood is that claims will follow. Unfair dismissal claims and discrimination claims, such as on the basis of gender or religion, are likely to be the two main risk areas. Seeking professional legal advice at an early stage is a wise move in order to understand the degree of risk in any given scenario.
Rather than dismissing employees, there are alternatives to having a mandatory vaccination policy in the workplace. Businesses can and should encourage and inform about the vaccine rather than enforce compliance, although they should be careful not to put undue pressure on reluctant employees to take it.
Although generally not possible for much of the hospitality and leisure sector, businesses can also ask employees to work from home for longer or look at changing responsibilities and roles, putting employees who won’t agree to the jab in roles with less public interaction and thereby lowering the risk of transmission.This could mean temporarily moving someone from front-of-house to cleaning or closing duties, for example.
Lastly, businesses should be pre-emptive and re-evaluate their recruitment contracts to mandate the vaccine or request that future employees give their vaccine status.Although there are no unfair dismissal risks here, this approach isn’t without risk because discrimination claims
To protect and guide business planning, companies should put a vaccine policy in place regardless of their approach to vaccination.This will give employees an overview of what the company stance is on vaccination and give them an outline of what processes are in place to deal with this new reality and various secondary matters, such as time off for vaccinations.
Whether considering a mandatory vaccination policy or just assessing their options to ensure a safer return to trading, hospitality and leisure leaders should approach vaccination in a delicate manner.The sector needs to consider that despite guaranteeing a degree of safety, enforcing vaccines comes at high risk.
