Following the successful trials of the vaccination for Covid-19, those vaccinations are now being steadily rolled out among the general population. This gives many people hope that there is an end in sight to the global pandemic, which has impacted Guernsey by way of two lockdowns so far.
It is clear however that some people, for medical, religious or other reasons, might be opposed to getting the vaccine. The States of Guernsey has given no indication it would seek to force people to have the vaccine. This gives rise to a question for employers: can they have a policy that all employees must have the vaccine when offered to them?
Broadly speaking, it is possible for an employer to make that requirement. An employer has a duty of care to its employees, which includes managing any risk of infection in the workplace. We have seen this in action during the lockdowns, when many employers put policies in place saying that their employees must work from home, and limiting the amount of workers allowed in the workplace at any one time. This can extend to ensuring that its employees are vaccinated in order to protect others.
If an employer decides to implement a “no jab, no job” policy, where an employee refuses to have the vaccine the employer may have grounds to refuse to allow them to return to work on the basis of capability (which includes health or other physical reasons). This will apply where it is reasonable for the employer to have implemented a vaccine policy. This being an untested area however the employer would be wise to seek legal advice before taking such a step.
Employers should also be wary of enforcing any such policy too rigidly.
The current employment law provides protection for employees who are dismissed if the reason for the dismissal (or the principal reason) is that the employee was pregnant. It therefore seems possible that if an employee refuses to take the vaccine due to pregnancy, a dismissal on this basis might be classified as unfair.
The much-discussed new disability discrimination legislation has not come into effect yet in Guernsey, and it remains to be seen how that would affect the current employment law. It is possible that under that new legislation a person refusing the vaccine on medical or disability grounds would be able to claim unfair dismissal if their employer made having the vaccine a condition of working. We will be watching the development of that legislation with interest.
Overall, this is of course a novel situation and it remains to be seen whether the Employment Tribunal or Court in Guernsey will have the opportunity to develop guiding case law on the matter. Many employers might choose to continue to enforce measures such as home-working and limiting the number of people in the office, whilst encouraging vaccinations at the same time, as an effective way to manage risk without taking the step of implementing a mandatory vaccination policy.
Employers with questions or concerns should always seek legal advice before taking any steps, and Ferbrache & Farrell stands ready to assist.