No jab, no job: is this for real?
A recent tribunal case involving a care worker sheds some light on this issue. The claimant employee worked in care home. The home scheduled vaccinations for staff in January 2021. The claimant was reluctant and said that she did not think the vaccine was safe and had been insufficiently tested. She said that she was immune to infection because she had already had C-19. The employer explained that if she refused the infection she would be suspended pending disciplinary action. She refused the vaccine and was suspended the following day. At her disciplinary hearing she said that she had refused the management instruction because of her religious beliefs (Rastafarianism). This was the first time that belief had been mentioned. The claimant was offered another chance to be vaccinated and she was told that remaining unvaccinated was a risk for residents and co-workers. She refused and was dismissed for gross misconduct. The Tribunal concluded that requiring staff to be vaccinated was a reasonable management instruction and that the reason for refusal was unrelated to religious belief and entirely related to her personal concerns about the vaccine. The claimant alleged that the requirement to be vaccinated interfered with her right to a private life (a human right under the European Convention on Human Rights). The Tribunal accepted that this was so but balanced this against the needs of the employer to provide a safe place of work and its pressing social need to reduce the risk to residents who were vulnerable. The Tribunal decided that it could not have achieved these proper aims in a different or less intrusive way. Thus, the dismissal was within the range of reasonable responses.
By November 2021 the government had imposed mandatory vaccinations for care home staff and the same rule is intended to apply to all NHS staff by April 2022. This decision is now under review and that law may well be repealed. We suspect that the care home law would be repealed at the same time. This may well change the no jab, no job philosophy that prevails in many workplaces and not just care homes. We recommend that you are prepared for amendment to your Covid Policy. You should plan to impose ‘no jab, no job’ only where it is absolutely necessary and where there are no other methods to manage infection risk. You should also seek to avoid treating a vaccination refusal as a matter of misconduct.
Holiday which is taken but unpaid can be carried forward
The Court of Appeal has published its decision in the latest Pimlico Plumbing litigation. The argument advanced by Pimlico was that its plumbers were self-employed and had no rights to paid annual leave. Some plumbers took annual leave regardless and were not paid. The employment status issue was decided in favour of the plumbers. The Appeal court had to consider whether employed plumbers who took annual leave but received no payment were entitled to holiday pay on termination of employment.
The court concluded that a worker who takes unpaid leave is not in fact exercising their right to ‘paid annual leave’ under the Working Tine Regulations. The statutory right to paid annual leave does not lapse but carries over and accumulates until the termination of employment.
Pay rates and thresholds for employers 2022-2023
New guidance has been published by HMRC setting out the new rates and thresholds for employers operating payroll or providing benefits to their employees. These will come into effect on 6th April 2022. You can find the rates here guidance.
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