Julian Cox, partner and head of the London employment practice at law firm BLM (www.blmlaw.com), discusses the possibility of mandatory vaccination being introduced into the hospitality industry, and the legal risks and needs employers would need to consider if so.
The success of the vaccination programme in the UK caused intense debate over whether businesses should start requiring staff to be fully vaccinated in order to work. In May, Public Health England (PHE) released rigorous evidence to show that the effectiveness of vaccination substantially reduces transmission and decreases the number of people needing hospitalisation.The findings highlighted the efficacy of vaccines in reducing the risk of unknowingly passing on the virus to others. It was strong evidence that by getting vaccinated, staff would protect not only themselves, but their colleagues in the workplace.
As a result, debate has sparked as to whether vaccination should become mandatory in industries where employees come into close contact with the public, including hospitality.With the sector still dealing with the aftermath of the pandemic, and at a time when many restaurants, bars and catering firms are struggling to fill vacancies, it’s a subject that companies need to broach very carefully. Hospitality businesses will need to be especially careful when dealing with staff who are wary of, or refuse to get, the vaccine, as it could well create risks of breaching employee protections including the Employment Rights Act 1996 and the Equality Act 2010.
Since hospitality organisations are responsible for health and safety in the workplace, they ought to consider whether they require their staff to be fully vaccinated as part of their own ‘COVID Secure’ risk assessment. If organisations can demonstrate that having a vaccine is the most reasonably practicable way of mitigating the risk of COVID-19, they may be able to mandate vaccination as a health and safety requirement.
Even where it can be argued there is a compelling health and safety-based requirement for vaccination or requiring vaccination is reasonable, employers will still need to tread carefully and follow fair procedure in communicating the requirement and dealing with any refusals from their employees to be vaccinated.
Prior to the introduction of a mandatory vaccination plan, employers should inform and consult staff about the requirement on a collective and individual basis.To best protect against a potential for exposure to discrimination claims, employees should exercise clear communication and work to find a suitable solution.
One of the most important risks to look out for is the potential for any claims of discrimination under the Equality Act 2010. Any potential mandatory vaccine requirement makes exemptions for certain categories of people, and employers should be specifically mindful of staff who fall into the following categories:
• those who are medically exempt by their GP due to underlying health conditions;
• have objections on the grounds of religious or philosophical beliefs;
• the vaccine is unavailable to them;
• women who are wary of the vaccine’s effect on maternity and pregnancy.
With this in mind, employers should not rush to dismiss someone who has not been fully vaccinated – it should be seen as an absolute last resort.
Any concerns around the vaccine that are raised based on disability, pregnancy, maternity, or religious reasons, will also need to be looked at very carefully, given they may afford protection against discrimination under the Equality Act 2010. As a matter of best employment practice, it is preferable to sit down with employees and try to understand and allay any concerns regarding the vaccine and attempt to resolve them. It could drastically reduce potential future claims, and through empathetic and informative discussion, hesitant employees may even consider getting vaccinated.
The potential for any unfair dismissal also represents a major risk for employers, if employees still refuse to be vaccinated without reasonable grounds and the employer looks to dismiss. Even if vaccination becomes mandatory for hospitality workers, employers will still need to follow all the procedural steps as part of ensuring a fair dismissal process if it comes to that. Failure to follow fair procedures in dealing with employees reluctant to be vaccinated could amount to an unfair dismissal.
Employees who feel pressured into having the vaccine may seek to resign and also claim a constructive dismissal, on the grounds of a hostile work environment.What’s more, there is no length of service requirement for ex-employees to bring a claim for unfair dismissal, given this is a health and safety-related dismissal. Employers should therefore consider dismissal as the final option to prevent a risk of such claims.This should spur employers to update their contracts of employment and policies to reflect the vaccination requirement.
The requirement to have members of staff fully vaccinated will undoubtedly bring new challenges and risks for any company, and will cause further complications in the hospitality industry, a sector still coming to terms with the challenges of the last 18 months. Going forward, clear communication and understanding will need to be at the heart of any interaction with anyone hesitant towards the vaccine, to ensure employees feel safe in the workplace and employers minimise the risk of legal action.
