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Future

Since we first reported on this matter, there have been further issues arising in this context which we briefly comment upon below.

As stated in Helen Leppert’s recent article, there are risks in adopting a blanket “no jab, no job” approach. 

Employers confirm they will adopt “no jab, no job” and the Government are asked for clarification

A number of high-profile employers have confirmed that they will proceed with a policy that would restrict recruitment to only those who have received a vaccine.

Pimlico Plumbers are perhaps the most high-profile. Interestingly, it is reported that Charlie Mullins of Pimlico Plumbers told BBC Radio 4 that such a policy would be rolled out in a few months, by which time the vaccination landscape will hopefully have significantly changed and it is likely that significantly more than 20 million people will have been offered a first jab.

In our view, it is fair to recognise that there is a difference between adopting such an approach for new recruits as compared to existing employees, but neither can be said to be absolutely risk-free.

In light of some arguably confusing messaging from the Government, it is reported that the trade union UNISON has written to the Care Minister asking that the Government “send a strong message to employers that putting pressure on staff to take the vaccine as a condition of their work is totally unacceptable”.

Whatever your personal views, it does seem likely that a clear position would help many employers navigate this particularly tricky aspect of the new normal.

In the meantime, it remains vital to focus upon identifying ‘mission critical’ reasons to justify a ‘no jab, no job’ approach.

Workplace testing

Earlier this month, the Government announced the expansion of rapid workplace testing. Previously, so-called lateral flow tests were available to organisations with greater than 250 staff but that threshold has now been reduced to 50 staff, providing essential services who cannot work from home.

This brings with it questions over whether an organisation which is able to provide lateral flow tests should do so and whether a failure to do so by choice could risk an argument that they have failed in their duty of care to protect their employees. 

Health and safety law requires employers to conduct a suitable and sufficient assessment of the risks from COVID, and to reduce the risks so far as reasonably practicable. It is the combined package of COVID control measures, informed by the risk assessment and current Government guidance that is important. Whether workplace testing would be reasonably practicable in any given workplace would likely depend upon a multitude of factors, including the other COVID control measures in place and the workplace activity being undertaken. The willingness of employees to be tested and the practical issues of carrying out the testing are also likely to be relevant considerations.

Lateral flow testing should certainly be an option being seriously considered by employers who are seeking to encourage their employees back to the workplace when they cannot work from home.

Tribunal decision on PPE ‘refusal to wear’ dismissal

In what is understood to be the first reported case of its kind, on 10 February 2021, a reserved judgment was issued in Kubilius v Kent Foods Limited where a judge sitting in the East London Employment Tribunals held that the claimant was fairly dismissed for refusing to wear adequate PPE.

The claimant was an HGV lorry driver and was required to wear a mask as part of the respondent’s COVID safety measures, including when in his cab delivering to customers.

Although the tribunal accepted the claimant’s evidence that he was not informed of the requirement to wear a face mask even inside his cab until he was asked to do so by a manager working at the customer’s premises, the claimant then refused to do so and “dug his heels in”. It was this, coupled with a lack of remorse and a ban on the claimant returning to the customer’s site, which resulted in the conclusion that dismissal was within the range of reasonable responses available to the respondent, even though a “reasonable employer might have concluded that this instance of misconduct merited a warning rather than summary dismissal”.

It is of course worth noting that this was a first instance decision and is not binding on any other tribunal and as each case is decided on its own merits, this judgment should not be viewed as a risk-free green light for similar dismissal action.

Where an employee (with the necessary qualifying service) is dismissed, the dismissal will be unfair unless the employer shows that the dismissal was for a potentially fair reason (such as in this case, conduct and a tribunal decides, whether in all the circumstances of the case, the employer acted reasonably in treating the potentially fair reason as a sufficient reason for dismissal.)

In cases such as Kubilius it will always be necessary for an employer to establish that it had a reasonable belief in the employee’s misconduct; by, firstly, establishing that there was a belief that was genuine, secondly, showing it had reasonable grounds upon which to sustain that belief and thirdly by having carried out as much investigation into the matter as was reasonable in all the circumstances of the case. Finally, the sanction applied must be within the range of reasonable responses available to that employer.  Remember also that the range of reasonable responses test applies not only to the question of sanction, but also to that of whether the employer's procedures leading to dismissal were adequate and fair.

We will continue to update as and when decided cases emerge in these areas and the legal landscape evolves.

This promises to be a complex area of law and it is vital to take legal advice if you are considering introducing such a policy. Contact our employment lawyers for expert guidance.

Read our previous insight “No jab, no job” – A viable approach for employers or a recipe for litigation?

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