The Issue of Vaccinated and Non-vaccinated Employees coming back to the workplace will invariably lead to litigation unless politicians start acting and giving clear and definitive advice and Legislation to cover matters*
In relation to matters the unfortunate situation is now effectively every employee has a potential claim under some Act, because of the vaccination issue against every employer. That cannot be morally right but it is legally.
Human rights lawyers are saying an employer cannot stop non-vaccinated employees returning to the workplace.
Health and Safety lawyers are saying that reduced workspace between employees can only happen where employees are vaccinated.
Data Protection lawyers are saying you cannot identify an employee’s medical information.
The HSA is saying an employer must keep non-vaccinated employees 2 metres apart.
The Government Guide on returning to the workplace says non vaccinated employees who cannot safely return on a risk assessment by an employer should be redeployed. The Government proposals are of course silent if redeployment is not an option. However, the Government plan clearly envisages asking and getting vaccination information from employees. The Data Protection lawyers will say an employer cannot insist on getting that information. The Human Rights will say that requesting that information and looking at the issue of redeployment could effectively be denying a return to workplace for non-vaccinated employees.
The segregation of employees creates huge Data Protection issues. The reason for this is that if the employees are segregated then in those situations the employer has identified to the vaccinated employees who is not vaccinated and to the non-vaccinated employees who are vaccinated. Effectivity the employer in those circumstances has disclosed medical information in respect of all the employees and all the employees potentially have a claim against the employer for disclosing their medical history.
The Data Protection Commission it appears will be against retaining vaccination information or identification of vaccinated or non-vaccinated employees. However, for health and safety purposes if the HSA comes into a premises an employer will have to be able to show why employees are or are not segregated or why and why not there is no 2 meter distancing.
The politicians, and in this we are referring to all politicians rather than any political party or the Government or failing to give clear guidance and are creating a situation where 100% of employees in every workplace could potentially have a claim for;
- Their identification as to whether they are vaccinated or not.
- Unfair Dismissal for not being allowed return to work.
- Health and Safety and Welfare at Work Act claims for having to work close to a non-vaccinated person. Equally Constructive Dismissal on the same grounds can arise, subject of course to appropriate grievances being put in.
- Personal Injury claims by vaccinated and non-vaccinated employees if they catch Covid in a non-fully vaccinated workplace.
There are of course more claims but the above is probably enough to go on.
The political class will collectively criticise lawyers but lawyers will simply be bringing claims which are set out in the law. The politicians are just not prepared to set out clear definitive Legislation on how businesses return.
Whether you are pro or anti vaccination, everyone has a right to know where they stand.
Currently every employee potentially has a claim under some Act against every employer on the issue of vaccination.
If that situation is allowed to continue then every business potentially faces a litigation tsunami of claims.
This is not an issue of blaming lawyers. The blame here has to be squarely in the shoulders of politicians. Politicians like to be liked by everyone. Therefore, the issue of making tough decision is one that they just do not like making.
There is some argument coming forward that non-vaccinated employees, returning to the workplace, where they choose not to be vaccinated once vaccination has been offered to everybody, effectively take the risk upon themselves if they become ill. That of course is contrary to the provisions of the Safety, Health and Welfare at Work Act, 2005. While there are obligations on employees there are equally obligations on employers. Employers if they do not know whether an employee is vaccinated or not vaccinated will then have to apply the HAS guidelines on distance between that employee and other employees.
The whole system is squaring up for a complete and utter disaster. It will be a disaster for businesses. It will be a disaster for employees also. The total lack of clarity in relation to the law is effectively going to mean that there is going to be significant litigation. That litigation will potentially put businesses out of business. It will result in job losses.
The issue is extremely serious. The Government is proposing returning to the workplace in August. They really have to get their finger out now and get clear legislation in place in relation to what can and cannot be done once all employees have been offered vaccination. The sad reality is that that will not happen and the tsunami of litigation will be a direct result of the failure of the Government to act.
We understand where the Government and politicians are coming from. There was this hope that effectively vaccination was going to be the golden bullet. The hope was, and to a certain extent expectation at the start, that everybody would agree to get vaccinated. The reality is that that is not the position. There is significant opposition among some. We are of course not saying that there has to be compulsory vaccination. However, the Health Act 1947, as amended in 2020, does actually enable the Minister for Health to require compulsory vaccination. However, there has never been compulsory vaccination in this country and never will be. What does need to be done is that there are clear guidelines for businesses as to how they open, what questions they can ask of employees, what they can do if employees refuse to be vaccinated or refuse to answer, how those records are to be maintained, what those records can be used for, how the issue of vaccination can be communicated to other employees in the workplace.
The real issue here that arises is not so much cases of Constructive Dismissal or Unfair Dismissal or possibly even Equality claims but really the issue of Data Protection issues under GDPR. Those cases are claims that are brought to the Circuit Court. Of course, there can be complaints to the Data Protection Commission but in reality the claims will go to the Circuit Court. Circuit Court actions are expensive for employers particularly in the SME’s Sector and particularly so if they are met by a number of claims by employees.
The Data Protection Commissioner is opposing information on vaccination being furnished with one ground, in their June 2021, release being that there is no evidence vaccination is effective against Covid.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.