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Can an employer dismiss an employee for refusing to have the coronavirus vaccine?

In due course some employers are likely to face situations where they feel they need to ask all or some of their employees to have the coronavirus vaccine. For a variety of reasons, including concerns in relation to potential side effects, testing and/or adverse reactions, some employees may refuse to do so. Due to the potential risk to clients, customers, service users and other employees, these employers will need to consider what options are available to them and whether they feel they have no choice but to dismiss an employee who refuses to have the vaccine.

There is no existing case law in relation to this and it will take a number of months and probably in excess of a year to start to see cases coming through the employment tribunal system. However, we can use existing case law in relation to other similar matters and the provisions of the Employment Rights Act 1996 to determine how a tribunal is likely to view this.

Employees with greater than one year and 51 weeks’ continuous service with an employer have the right not to be unfairly dismissed. Employees can only be dismissed for a limited number of fair reasons. In most cases, it is likely to be unfair to dismiss an employee for refusing to have the coronavirus vaccine. It is not possible to compel an employee to have the vaccine due to the right an individual has to a private life under the Human Rights Act 1998 and the European Convention on Human Rights. However, some employers such as care sector employers and the NHS may be able to justify the dismissal of employees in front-line roles who refuse to be vaccinated where there is a high risk of the virus being passed on to vulnerable people.

In the circumstances referred to above, an employer will still need to go through a fair procedure when considering the dismissal of an employee under these circumstances. Alternative options should be explored, including the option of redeploying an employee into another role. If no alternatives can be found and the employee has followed a fair procedure such that they can dismiss the employee fairly, the employee will still be entitled to notice pay in accordance with their contract of employment/statute.

Employers will also need to be aware of any refusal of the vaccine by an employee on the grounds that they are suffering from a disability or related to any other protected characteristic under the Equality Act 2010.

Given the risks associated with a dismissal on this basis, employers are advised to seek legal advice before taking any steps to dismiss an employee.

Gender reassignment discrimination protection extended?

In the case of Taylor v Jaguar Land Rover Limited, the Employment Tribunal held that a person does not need to undergo or intend to undergo medical treatment to have the protected characteristic of gender reassignment.

Ms Taylor worked for Jaguar as an engineer. In 2017 she told managers that she was transitioning from male to female. She attended work in female clothing, suffered harassment and discrimination and subsequently resigned. She claimed discrimination on the grounds of gender reassignment and constructive dismissal. Jaguar argued that she was not protected by the characteristic of gender reassignment because she described herself as ‘non-binary’ or ‘gender fluid’. The tribunal held that Ms Taylor was protected because she was on a journey of transition, irrespective of how she described herself and that this did not necessitate any medical process. Ms Taylor succeeded in her claims.

This case is an employment tribunal decision and not binding in relation to subsequent cases. However, it may well be appealed to the Employment Appeal Tribunal and may lead to a significant development in the law to bring ‘non-binary’ or ‘gender-fluid’ individuals within the scope of the gender reassignment protected characteristic.

Clarification on when a redundancy situation exists

In the Employment Appeal Tribunal (‘EAT’) case of Berkeley Catering Limited v Jackson, the EAT held that the manner in which a redundancy situation arises does not affect whether or not a redundancy situation exists.

The Claimant was the Managing Director of the Respondent. The company’s owner named himself CEO and took control of the decision-making within the company, deliberately undermining the Claimant’s position. The Claimant was dismissed by reason of redundancy on the basis that the company’s requirements for employees to carry out work of a particular kind had diminished. The Claimant claimed unfair dismissal.

The EAT overturned the tribunal’s finding that there was no redundancy. The Respondent arranged its affairs such that its requirement to carry out the particular kind of work undertaken by the Managing Director diminished, thus creating a redundancy situation. The Respondent’s motive was not relevant in determining the existence of a redundancy situation.

Employment law and its role in managing workplace stress

High-levels of workplace stress and related mental health conditions are a huge problem in the modern workplace and can lead to: high-levels of employee absence; management time spent addressing such concerns; demotivation and a reduction in performance; workplace disputes/grievances; and, costly litigation. Employers who invest in understanding what causes workplace stress and how to address it, put that learning into practice and spend time working with employees to better-manage and reduce their stress levels will find that stress-related absence reduces, employees are generally happier and more engaged and productive, less time needs to be spent managing difficult situations, litigation is reduced and the employer becomes known as a workplace of choice, attracting the best talent and retaining its employees.

Employment law is frequently used to guide employers as to the minimum parameters that employers must abide by when things have started to go wrong with an employee but it is perhaps more constructively used as a pro-active aid to indicate how best to manage employees such that there is a reduced need to engage more formal employment law processes which can often lead to dismissals, disputes and, in the worst-case scenario, litigation.

The following areas of employment law can be utilised in such a way as to prevent and reduce workplace stress and related mental health issues:

1. Equality Act 2010: where an employee is suffering from a disability under the Equality Act 2010 (‘the Act’), the Act requires employees to make reasonable adjustments for an employee to assist them in carrying out their role. Stress-related mental health conditions such as anxiety and depression can amount to a disability under the Act in certain circumstances and, in any event, it is sensible to consider making reasonable adjustments where an employee is suffering from high levels of stress or related mental health conditions in any event, so as to assist the employee in remaining in the workplace. Chapter 6 of the accompanying Code of Practice provides useful information in relation to this and can be found at: https://www.equalityhumanrights.com/en/publication-download/employment-statutory-code-practice. Employers can often be concerned about the cost of making such adjustments and the Code of Practice makes reference to the availability of support under the ‘Access to Work’ scheme which we have found our clients to have benefitted hugely from, both in terms of the expertise that it can provide and support with funding.

2. Sickness Absence Management procedures: it is useful for employers to have sickness absence management procedures in place and to actively use these when dealing with employees who reach certain ‘trigger points’ for absence. Actively using such procedures as a means to touch-base with an employee who has frequent or persistent absences can assist in identifying potential problems and supporting employees such that they do not end up in a situation where they are absent from work on a long-term basis. Once an employee has been absent for some time due to stress and related mental health conditions, it becomes increasingly unlikely that they will ever return to the workplace, so if this can be avoided it is better for all involved. Meeting to discuss absence in accordance with such procedures should initially be seen as an opportunity to better-understand the conditions or conditions that the employee is suffering from, the reason for the absences, to identify whether there is any underlying concern and whether any further action should be taken such as obtaining medical input from the employee’s GP or an occupational health consultant, or offering other support as set out in this article.

3. Flexible working: all employees with 26 weeks’ continuous service or more have the right to request flexible working. Employers have a right to refuse such a request based on a specified number of grounds. However, it is advisable to give serious consideration to any such request, particularly where an employee is suffering from work-related stress. Allowing an employee to work in a manner that is suitable for them can vastly reduce levels of stress and therefore improve employee motivation, productivity and general happiness in their work. For example:

a. An employee is struggling to concentrate in a busy office environment and is more productive when working undisturbed. An agreement to the employee working from home two days per week is likely to improve their productivity.

b. An employee suffers from depression which has arisen due to them experiencing high-levels of stress. As a result they struggle to get up in the morning. An adjustment to their working hours may enable them to remain at work whereas they would otherwise become absent due to sickness.

c. An employee has a long commute to work which would be halved in time if they travelled outside of rush hour. A slight adjustment to their start and finish times could reduce the length of their working day.

d. An employee is finding it hard to juggle the responsibilities of work and family life and the employee’s inability to spend quality time with their children during the working week is causing them stress. An adjustment to the employee’s working hours may enable them to manage their working day such that they are able to spend more time with their children, meaning that the employee is happier and therefore more motivated and productive.

4. Stress Risk Assessment: the Health and Safety Executive’s stress risk assessment tool is very well put together and can be used to indicate areas within your organisation that are potential pressure-points in order to help you comply with your duty of care to your employees and enable you to identify where training or other solutions may need to be considered to reduce the risk of high-levels of stress arising. This can be found at: https://www.hse.gov.uk/stress/risk-assessment.htm. A ‘Tackling Stress Workbook’ can also be found on this page.

To hear more about the above and how you can best use employment law to manage your employees, contact Elizabeth Judson on elizabeth.judson@dtmlegal.com.

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