Dental practices that are pursuing a ‘no jab, no job’ policy for new employees are “entering untested territory”, according to a leading employment lawyer.
As the UK starts to reopen business premises, the question of employees carrying proof of vaccination has been raised, and some employers considering insisting on new staff having been inoculated.
Tina Chander, head of employment law at Midlands law firm Wright Hassall, highlighted dentistry as one of the professions that could be at the centre of scrutiny around the vaccination in the coming months.
Chander commented, “There are some services, such as dentistry, where close contact between an organisation’s employees and their patients is unavoidable, and in turn, puts employers in a tricky position if any members of their staff refuse to have the covid vaccine or take regular tests.
“For example, I recently received an enquiry from a dental practice where some dental nurses had refused to have a jab, but patients had started asking the practice if all the staff were vaccinated.
“Some patients expressly stated that they did not want to be seen or attended by any nurse or dentist that was not vaccinated. If this continues to be a problem, the dental practice fears patients will leave the practice.”
But, according to Chander, company bosses who are considering disciplining or dismissing any staff member who refuses to have a covid vaccine are running the risk of having to fight costly unfair dismissal, constructive unfair dismissal and discrimination claims.
Chander urges employers to tread carefully with employees around the topic of vaccines as it remains unclear under what grounds this request could be accepted as reasonable. Of course, an employer can encourage their staff to take up the vaccine, but an employer has no legal right to force the jab on any employee.
Chander added, “Put simply, I am not convinced that an employer can force a prospective or current employee to have a vaccine because there is no legal requirement for anyone to have one.
“This is a sensitive subject and poses a delicate balance that employers have to strike.
“On the one hand, employers have an obligation to ensure the health and wellbeing of their employees whilst at work, but employees also have a duty to co-operate with their employer and make sure they are mitigating any risk to their health, and the health of their colleagues and customers or in this case, patients.
“If a company is faced with one staff member who refuses to have the vaccine, this should not cause other staff members issues. The working environment should already be covid-secure and provide sufficient space for employees to social distance. It should only become a serious problem for employers if covid-secure measures aren’t being followed.
“Employers need to note that there may be some employees that might not want the vaccine due to religious reasons or philosophical beliefs, or some employees may have medical issues which prevent them from having a vaccine.
“If an employee falls into one of these categories, then an employer could be leaving themselves open to allegations of discrimination if they pursue disciplinary proceedings.
“That said, while employers should not approach this with a blanket rule that every employee must have a vaccine, it is reasonable for them to encourage their employees to have a vaccine.
“For those staff members that do refuse or decline, employers should consult with their employee to find out their reasons and carry out an individual risk assessment before taking any action, and if they have not already done so, seek professional legal advice to check the correct procedures are being followed.”