Chris Hendry, of legal firm Viberts, made the comments after UK company Pimlico Plumbers said it would be introducing a ‘no jab no job’ policy for new starters. Mr Hendry said that while, broadly speaking, employees were required to follow the reasonable instructions of their employers, the definition of ‘reasonable’ depended on the facts involved.
He highlighted several factors that could be used to challenge such a policy if a member of staff was dismissed for refusing to have the jab. ‘If you are considering a mandatory vaccination policy, clarity in all communications is going to be essential,’ he said. ‘Engagement with trade unions, work councils and the workforce generally will be essential to achieve employee buy-in and compliance.’
Among the factors to consider, he said, would be data-protection implications around an employee’s health, potential health complications as a consequence of mandatory vaccination and discrimination issues.
‘Where there has been different treatment between the vaccinated and the unvaccinated, this might amount to indirect discrimination,’ he said. ‘The Discrimination (Jersey) Law 2013 provides protection against discrimination in relation to race, age, sex (including discrimination based on sex, sexual orientation, gender reassignment, pregnancy, and maternity) and disability. We anticipate that the most likely protected characteristics which could be infringed by a mandatory vaccination policy are age, disability, sex and pregnancy.’
He added that as the vaccine rollout in Jersey was largely based on the vulnerability of the individual, factors such as age and medical conditions would need to be taken into account.
‘Older members of some workplaces may be vaccinated prior to younger workers, who may not be offered a vaccine until late 2021 – if at all, as the Government of Jersey are yet to confirm whether under-18s will be offered the Covid-19 vaccination,’ he said.
‘Certain individuals may be advised not to take the vaccine due to an underlying medical condition. If an employee with a disability refuses to be vaccinated in accordance with an employer’s mandatory vaccination policy an employer would need to understand why and factor that reasoning into their decision-making process.’
