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Considering ‘no jab, no job’ and the events industry

Recently, between 500 and 600 Australian Open players, officials and support staff went into isolation after a worker at one of the event’s quarantine hotels tested positive for the coronavirus. In future can the events industry afford to allow staff who choose not to be vaccinated to continue to work at events?

There is plenty of precedent for a requirement for vaccination for specific job roles. Public Health England’s ‘Green Book’ for health and lab workers says routine vaccinations should be up to date, and other specified vaccines are ‘recommended’. See: Green Book: Chapter 12 Immunisation of healthcare and laboratory staff (publishing.service.gov.uk)  

The problem for the events industry is that post-pandemic, with so many staff having been let go, they will be stretched far too thinly to cope with a cohort of staff who potentially limit their employability by refusing a vaccination.

This issue warrants debate. On the one side you have Charlie Mullins, the cheeky chappie founder of the upmarket Pimlico Plumbers, who coined the phrase ‘no jab, no job’. His company has gone public with the fact that they will not employ anyone who has refused a vaccination. On the other side, employment lawyers and unions are already looking to the courts with claims from unfair dismissal and discrimination to violations of human rights.

Normally in England we base our policies and practices on the employment and safety laws rooted in Common Law that have been built up in this county since the industrial revolution. The problem is that there is no directly relevant case law here and we cannot wait two years or more for a case to make its way to the Supreme Court to set a precedent and new law. In any case, should the events industry really be content to let the law take its course and risk an adverse finding which would add a new legal burden on already stretched event companies?.

English doctor Edward Jenner, ‘the father of immunology’, created the world’s first vaccine over two hundred years ago which, paradoxically, also gave rise to the first anti-vaccine movement. It would be wrong to lump all of those who do not wish to take a vaccine together as ‘anti-vaxxers’ per se, and their motives are not all rooted in ignorance or superstition. There is nothing illogical or necessarily wrong with questioning a vaccine.

The World Health Organization (WHO) refers to this as ‘vaccine hesitancy’ and says this is one of the top ten threats to global health. Employers may also have to consider whether individuals who refuse the vaccine are protected under the Equality Act 2010 on the basis of their religion or philosophical belief. Other groups, such as vegans, may disapprove of the vaccine because animal products were used in their development. What about pregnant women? According to the NHS, most pregnant women will not routinely be offered the vaccine unless they have a high risk of getting coronavirus because of where they work or, if they have a health condition that puts them at greater risk. Willingness to have a vaccine also varies considerably between nationalities and ethnic groups some of whom have a significant ingrained culture against vaccination.

It is not just about the amount of risk an individual is prepared to take in respect of their own health, because choosing not to be vaccinated affects other people and in the event world that is a risk to the business as a whole. Just like the Australian Open, a single infected event manager could force the whole team into quarantine and thus unable to run the event.

There is no legal basis the UK government can rely on to force people to be vaccinated and people cannot be forced to have a vaccine if they don’t want one. The debate is the extent to which those that choose not be vaccinated can be treated differently.

The Health and Safety at Work Act (HASAWA) requires employers to take reasonable care of employees and others1. Given that Covid vaccines are known not to be 100% effective in preventing infection, knowingly exposing staff and visitors to people who have chosen to not to vaccinate arguably contravenes that duty. Vaccines are a last line of defence and require other controls being in place beforehand.

What do you say to an employee who cannot be vaccinated for medical reasons and who may be vulnerable, if they ask to know if anyone working around them is not vaccinated? Employees have a duty to cooperate with employers on matters of health and safety and follow reasonable instructions which could include the need to be vaccinated for front line event work2. Military service personnel are required to be vaccinated against endemic health risks they may encounter on operations. Event companies working globally routinely require staff to undergo necessary vaccinations, e.g. Yellow Fever, and in many case the airlines will not let you travel unless you can prove that you have the necessary vaccines for the destination when you check in. Ultimately, you cannot run an event from home so logically event companies should be able to require staff to be vaccinated to fulfil certain roles.

It is an accepted principle that health and safety law usually trumps the Equalities Act where to do otherwise would entail an unacceptable risk. Epilepsy may reasonably preclude employment as a rigger working at height or a forklift driver, for example. What it boils down to is, can event companies reasonably be expected to allow staff to cherry pick events or projects based on the fact that they have refused a vaccine or potentially jeopardise the entire event by becoming infected?

There will be exceptions that need to be managed and how this is done is largely an issue for the HR profession. Issues like pregnancy are an easily identified reasonable exemption and there is already UK law which covers this3. However it only takes one individual to take a case to court to change employment practices.

The canary in the mine here is the landmark ruling last year which established ethical veganism as a ‘philosophical belief’. The claimant, Jordi Casamitjana’s victory was only in an Employment Tribunal so does not set a new binding legal precedent but it does set a principle that employers cannot discriminate against vegans4. The anti-vax movement are looking to achieve the same legal recognition and all they need is a trojan horse court case to set it in motion. It is reasonable to assume that they are planning to bring just such a case when the opportunity arises.

The law of host countries, of course will be different. Some may require a vaccine anyway forcing event companies to only send vaccinated staff irrespective of UK law. Either way the same legal duty of care, in this respect, applies to employees being sent overseas as it does to employing them in the UK especially where the Covid risk in the host country is higher than that of the UK .

Event professionals, particularly operations staff, are usually, the ‘do whatever it takes to get the show open’ types and are unlikely to balk at being vaccinated. It seems likely that if cases arise, they will very much be the exception rather than the rule. It would be wrong to ignore the issue however.

If the last 12 months have shown anything, it is that we cannot rely on the old certainties and even the new ones are changing. A year ago face masks were considered to be ineffective and everyone was rushing to install pre-screening temperature detection equipment, a reasonable response at the time, which is now almost irrelevant as an effective control measure. This may be a false alarm but it must be remembered that the only virus that has ever been defeated by vaccination was Small Pox and that took over a hundred years so COVID-19 is part of our ‘new normal’.

There is far too much at stake, as the events industry takes its first tentative steps back to normality, to leave this issue to chance. The industry needs to ensure that our workforce is presented with a counter-narrative to the anti-vaccination scare stories based on scientific fact and have policies in place to make clear where the line is drawn between legitimate and reasonable health concerns and individuals who believe that they warrant different treatment even if it puts themselves, others and their event at risk.

Disclaimer: This article presents the views of Simon Garrett, Vice-Chair of the IOSH Sports Ground and Events Group and MD of X-Venture Global Risk Solutions. It does not represent the views of IOSH, which are set out in its position on Vaccination and the Workplace.

The writer says: “X-Venture is a health and safety consultancy and not an HR specialist and the intention here is to spark a debate5.”

Notes (see over)

  1. HASAWA Sect. 2&3
  2. HASAWA Sect.7
  3. The Management of Health and Safety at Work Regulations 16-18
  4. The landmark legal case was brought by vegan Jordi Casamitjana, who claimed he was sacked by the League Against Cruel Sports because of his ethical veganism. The court ruled that ethical veganism qualifies as a philosophical belief under the Equality Act 2010 by satisfying several tests - including that it is worthy of respect in a democratic society, not incompatible with human dignity and not conflicting with the fundamental rights of others.
  5. X-Venture is a Health and Safety Consultancy not a legal practice or an HR specialist consultancy. This article is intended to generate a debate and professional HR or legal advice should always be sought for specific cases.