Covid and Employment Law – Where Are We Now?

Fundamentally, the almost miraculous success of so many vaccines has transformed the landscape from one of bleak despair to one of manageable hope.


James Rowland

Commercial Director James leads Account Management, Sales and Marketing at Neathouse Partners.


07 January 2022


17 July 2024
3 min read
Covid and Employment Law – Where Are We Now?

As the increasingly bizarre antics of Novak Djokovic fascinate more and more around the world, and domestic discontent with anti-vaxxers rises throughout Europe, it is probably high time to review how the (legal, not medical) position has changed – if it has – over the last two years.

Fundamentally, the almost miraculous success of so many vaccines has transformed the landscape from one of bleak despair to one of manageable hope.

It's true that Omicron is producing large numbers of hospitalisations, but not the same number of deaths as the heart-breaking times of early 2020. And as it appears that we may be moving to a position of mass infection with a (generally) non-lethal variant. Admittedly it is nearly 40 years since I was working in Epidemiology, but as I recall, that’s the state one seeks.

Legally, employers are required (outwith the provisions of the Health and Safety at Work Acts) under the Employment Rights Act, to provide a safe location and system of work. Back then, the obvious answers were staying away (Furlough) and other forms of Government support, which, perhaps surprisingly, considering HMG’s philosophy and history, generally responded sympathetically. Those with particular vulnerabilities were, along with their relatives, especially at risk. So it was, in many jobs, but by no means all, applicable to remain at home. However, the economy can only take so much.

And then the outcome of practically unlimited financial and scientific inputs resulted in so many successful vaccines (and some less so; sorry, Institut Pasteur. Mind you, that was hardly an excuse for Monsieur le Presidente de La Republique dissing Astra Zeneca at the cost of God knows how many lives. A sad case of Small Man Syndrome linked to Brexit distaste. In itself, just petulance, but which here had lethal consequences, alas).

Most queued for them. Some immediately retreated into anti-vaxxing fear for various reasons, none of which could accurately be stated as a result of over-education.

The arguments are many, but coalesced around a fear of ‘experimental’ vaccines, global surveillance through chip implementation, and a fear of 5G internet.

It’s not ridicule that provokes this Tour d’Horizon, it’s a legal concern.

Vaccines haven’t been experimental for 200 years; microchips are way too big to inject (and if one did desire to mass monitor populations, why not simply pay Google et al? (I’m pretty sure the NSA and GCHQ would) and 5G? Enough said.

Initially, individuals claimed discrimination and infringement of religious rights.

This was scotched from the start when the leaders of all the Abrahamic religions came out and emphasised that the successful vaccinations were not contrary to the will of God, but rather a testimony to His blessings on Humanity by endowing humans with knowledge. So much for that.

A short-lived attempt was made in the UK by claiming that free treatment to preserve life was contrary to an individual’s right to Private and Family life. I have to say (and despite earnest and impassioned Today programme early morning rhetoric from keen Counsel from fashionable Chambers) this was never going to be a flyer.

A lot of Employment and Health and Safety primary legislation (see above) supersedes this, and once evidence accrued as to the efficacy of vaccination, such claims would never hold water.

In itself, an argument for a scientific education to precede a second career in the Law, or Civil Service or Politics, if there ever was one. I’m sure ‘Greats’ is great, but I doubt its utility in 2022.

The latest attempt to avoid returning to work has just been thrown out by the Manchester Employment Tribunal.

An employee claimed that she could not return to work – but should continue to receive full pay and benefits – as she did not wish to be vaccinated. Her Employer disagreed. Unsurprisingly, the Tribunal agreed with the Employer. No member of her family was classified as ‘vulnerable’. Hence, there was no reason not to comply with current regulations of attending work and of necessity to be vaccinated.

The second limb of her argument was that it was unreasonable to conclude that experimental vaccines would protect her.

Therefore, her argument developed that she had a genuine belief equivalent to religion (and thus a protected characteristic under the Equality Act) that she would suffer harm as a result of returning to work and was therefore suffering discrimination.

I don’t know if the Judge had a scientific education, or merely an exact knowledge of the Equality Act, but correctly pointed out that there was now sufficient evidence on the efficacy of the vaccines to show their value, and that her position was irrational and her claim at a belief could not hold water. And so, the claim failed.

So a welcome result in an English Court: a verdict underpinned by objective scientific evidence.

If I was Mr Djokovic, I’d be packing my bags: a common-sense response to this awful pandemic may be on the point of breaking out.

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