19 May 2022

Opinion from Adrian Leopard & Co

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Can employers insist that their employees are vaccinated against Covid-19 or indeed their customers?
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Can employers insist that their employees are vaccinated against Covid-19 or indeed their customers?

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It will definitely become “those who have and those who haven’t”. And it will become as divisive as everything else during this pandemic

The question as to whether any party has a right to insist that any other party must be vaccinated has been raised before and as yet there are no definitive answers – indeed there are various possibilities.

Probably the bottom line is that, certainly in the UK, there is no law which requires people to be vaccinated against this disease – to do so would probably be regarded as a breach of human rights. However, the fact that an individual cannot be forced to accept vaccination does not mean necessarily that he can go anywhere he wants and do anything he wants regardless. This matter has deeper connotations.

So far as employers are concerned, things start off with health and safety at work where an employer has a duty to ensure the well-being of his employees. This of course is where the grey areas start to arise. Can an employer refuse to employ an individual if he is not vaccinated? This will surely depend on the level of safety and the risk of transmission of the disease. So in a case where an office worker can satisfactorily work at home, for example, it is unlikely that his boss can get rid of him on the grounds of non-vaccination. Working at home presumably will not put the employee at risk, nor his co-workers nor indeed the business’ customers.

But take, for example, the catering trade with which this firm is closely associated, most, if not virtually all of the staff in a hotel, restaurant or pub are likely to come into close contact with each other and most particularly the business’ customers. In those circumstances, failure to employ only staff who have been vaccinated could pose a serious risk to the other staff and the customers. Moreover a person running a catering business will need to think very carefully about what his customers would expect. Would the public be so keen to come into his establishment if they thought there was a risk of getting Covid-19 or even being put into a position of being able to transmit it?

Imagine a wedding group not being able to get together? It wouldn’t be the same!

So in those circumstances would an employer be justified in making compulsory vaccination a contractual requirement?

A member of the public posed the question yesterday to the Prime Minister in his daily briefing which asked if a group of people who had all had both of their vaccinations could mix together without having to worry about social-distancing and if not, to explain the rationale. The answer was actually a bit of a fudge but people are still expected to keep their distance. That is not surprising at the moment but things are going to change. What would the point be of getting vaccinated if you could not envisage returning to a normal life? And if you have passed that particular milestone, why should you not in fact be able to benefit from relaxed restrictions? It is bound to come sooner or later.

I can envisage innumerable situations, mainly clubs and societies, where people want to get back to socialising where those clubs may mandate their own members to be fully vaccinated before they can return to the group, in the same way that an employer interviewing a prospective new employee could say that coming into the job would mean vaccination was an imperative.

It is the belief that things are going to improve which will bring the public through this crisis and at the moment, vaccination is the only real light at the end of the tunnel and with that particular aspect of management of this crisis going so well in Britain, it is inevitable that this is where the spotlight is going to be pointed.

Apart from work places and social gatherings in the UK, it has to be borne in mind that there are likely to be other countries where a vaccination certificate will be mandatory and when travelling by air it is already looking very much as if that will become a requirement.

So to answer the opening question, every situation is going to be slightly different with different nuances but the real hope is that there will be a minimum number of people who cannot or will not have the jab. The question then disappears.

Adrian Leopard 04-02-21

Photo Samantha Gades

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Adrian Leopard & Company is the trading name of Alderney Offshore Ltd, a company registered in Alderney, Channel Islands number 1220.

Address P O Box 1027, Alderney GY9 3AS

Registered Office Seldomin, Longis Road, Alderney GY9 3YB.

Adrian Leopard & Co is represented in the UK by 3CL (UK) Ltd trading as Adrian Leopard Associates.

Telephone enquiries may be made on 08449-4-08449 or 01684-230360.

E Mail [email protected]

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