If you are a healthcare employer, what to do with your unvaccinated employees is not clear cut, despite what the generic advice out there might have you believe. Our latest video by Adrian Poole, Head of the Employment Law Team, discusses 'no jab, no job' and what points you should be considering.
We've also provided a transcription of the video below.
Hello and welcome to this very short Porter Dodson update with regards to no jab, no job.
As of the 1st of April, health and NHS workers will be required to have the vaccine. This means that unless they are exempt, they have to have their first vaccine by the 3rd of February and the second vaccine by the 31st of March.
There seems to be an assumption that the situation is, therefore, very straightforward. That the law is the law and as a result, therefore, employers have to go down this route. That they have a get out of jail free card if you like when it comes to any employer liability.
I consider that to be a foolhardy approach and I think a lot of the advice around this is rather unclear and perhaps overly reassuring. The reason why I say that is that there is an issue, firstly, with regards to the status of the regulations as opposed to acts of parliament, for example, health and safety and discrimination legislation, which are not overwritten by those regulations requiring the jab.
There's a secondary issue with regards to informed consent, in that it's long since been a principle of medical ethics law that consent has to be informed in respect of any medical intervention. This goes back to the Nuremberg Code following the Second World War.
If, therefore, someone is facing coercion before they get medical intervention, then there is a good legal argument in my view that the consent is effectively null and void, or at least unlawful. If one thinks about the nature of the regulations, they're saying if you don't have this vaccine then you will lose your job. In my view that would fulfil the definition of coercion and, therefore, there is a question mark there.
There are also issues around discrimination. Many of those objecting to having a vaccine are doing so on grounds of religion or belief or other protected characteristics, such as sex. They might, for instance, be worried about fertility. So, this is not a clear-cut case of the law says what the law says and, as a result, we just have to go along with it.
I would say that we have to be very very cautious when we're dealing with these issues. We have to be responsive to the concerns put forward and we have to tailor our responses to ensure that we, as employers, cover our backs.
If you want more information, please do get in touch with a member of the Porter Dodson Employment Law Team.