The difference between reluctance and refusal.

I don’t think (legally speaking) employers outside care or healthcare are likely to be able to force staff to vaccinate. But even in those areas, in these early days it’s best to talk about it. Which will enable you to spot the conspiracy theorists putting everyone at risk…

A good friend of mine, Daniel Barnett, recently let me loose on his HR Inner Circle, presenting an hour-long ask-me-anything about employment law on Zoom. Great questions, from thoughtful HR professionals. (including a nice one on TUPE. I’m mad. I actually like TUPE stuff.) It was a delight, and a privilege.

(Daniel, as I’ve mentioned before, terrifies me. His entrepreneurial existence is scheduled and planned apparently to the microsecond – he says thanks to online outlining tool Workflowy. Tried it. Not for me. I’ll stick with Craft for the moment – which I’ll get round to writing about in detail once these cases are over.)

Two questions were about vaccines – specifically, whether an employer could require staff to take them as a condition of employment. It turns out that Daniel – unknown to me – had posted a video about this shortly before the session. We came broadly to the same conclusion: no, usually they probably can’t – but the unpalatable and impoverishing alternative for the employee might well be to resign or be fired, and sue for unfair dismissal. (Possibly automatic unfair dismissal on health and safety grounds, but that’s trickier. Another friend, Gus Baker, is a good guy to go to on that.)

That said, the situation’s likely to be different in care homes and the NHS. There, there’s a strong H&S obligation to protect service users and staff in a high-risk environment. I (and I think Daniel) would reckon an employer would have a far better argument there, as they undoubtedly do for mandating regular tests.

What Daniel didn’t get a chance in his video to consider, and what I discussed on the call, was whether it might be different in these early days of the vaccine. I think it may well be, even in care environments. Many people could be forgiven for some nervousness: I’ll be at the front of the queue once my turn comes, but given the unprecedented (and bordering on miraculous) speed of development and rollout I wouldn’t be surprised to find people thinking they might want to leave it a month or two, to see if any unanticipated side-effects kick in. On the whole, I’d think it’s worth employers talking to staff and understanding reluctance; that’ll probably go some way towards encouraging participation in due course. Certainly much more than a hard line from the get-go.

This approach may seem obvious – but its roots are in the same kind of “harm reduction” approach to healthcare that created needle exchanges for drugtakers, stressing that shame and stigma don’t work, but trying to understand where people are coming from does.

But what about those who aren’t reluctant but rather refuse? Particularly those who seem to be imbibing Facebook-driven madnesses concerning 5G, Bill Gates-designed microchips or other lunacies? And – still worse – try to persuade others to boycott the thing as well?

Like Daniel, in a care environment I think employers might have a good case for taking a hard line on this. Particularly if you’re not only refusing but agitating for others to do likewise. The risks are too high, for too many people.

And it frankly scares me. A relative of mine who works in a care home had his first jab just before the New Year. He says two thirds of his colleagues have refused – and a number of them are definitely of the “it’s all a plot, tell your friends” variety. I despair. Humans. Really.

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