I was interested to read a couple of recent press reports in which it was suggested that the Government had accepted that employers could insist on employees receiving the Covid vaccine prior to returning to work. I suspect that this may be part of a campaign to use the media to influence people to take up the offer of vaccination and it is important that employers do not allow themselves to be drawn into discriminatory conduct as a consequence of this reporting.
I can understand the attraction of the “no jab no job” approach for any business which has employees who provide services in the domestic environment. I assume that it would be a significant marketing advantage to run advertising which suggests that all your employees have been vaccinated, with the implication that they could not take the virus into the homes of customers. It has been reported that Charlie Mullins, C.E.O of Pimlico Plumbers has already suggested that his business will use this approach with their workers.
The problem that I can foresee with this is that the vaccination is not within the control of the business and is presently only available to “priority groups” (i.e. the over 50s). In addition the vaccination may not be appropriate for people with some medical conditions which could fall within the definition of a disability in the Equality Act and there are reports that certain ethnic groups and people with particular religious beliefs are statistically less likely to accept the offer of the vaccination (misinformation that the vaccine contains pork is widely cited as the cause of this anomaly).
For these reasons, if a business only allows employees who have been vaccinated to undertake their work, or to work in the homes of customers, it seems likely that disadvantaged employees will have a strong argument that they have been discriminated against due to their age (too young to be given the vaccine), their disability (they cannot have the vaccine due to their medical condition), or their religious belief. In short the “no jab no job” approach strikes me as an elephant trap for employers.
I have been advising businesses to avoid the “no jab no job” approach for a couple of weeks and I have not seen anything recently which makes me take a different view. The situation could be slightly different if employers were to adopt a “no test no job”. I understand that lateral flows tests are becoming more available to employers and these provide rapid results to confirm positive or negative status. Employers could purchase a quantity of these tests and offer them to all employees. Employers have a legal obligation to provide employees with a safe place of work and mass testing may well be a reasonable step to complying with that obligation.
Testing would allow employers to remove infected workers from the workplace and remove the risk that they could attend at the homes of customers. A business adopting this approach may then be able to advertise that their employees were tested negative for the virus before being sent into the domestic environment of customers. This may also be relevant for businesses in the food manufacturing sector. It will be interesting to see which businesses adopt this approach and steal any marketing advantage from their competitors.
If you have any queries about these suggestions, or the management of employees with the virus please do not hesitate to get in touch (virtually!).
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