Can No Jab Mean No Job?

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Many people are worried about their employment rights regarding the Covid-19 vaccine. We reached out to Amanda Hamilton, Chief Executive of the non-profit National Association of Licensed Paralegals, to help explain your rights and potential issues around refusing the vaccine.

There is no law in UK which requires mandatory vaccination, as much as some anti-vaxxers claim otherwise. The Public Health (Control of Disease) Act 1984 devolves powers to Parliament to legislate in order to protect UK Citizens. The law enables Parliament to intervene in an emergency situation, such as the pandemic, and impose lockdowns and restrictions to protect citizens, but it cannot impose mandatory vaccinations. In other words, there is no power to make vaccinations mandatory.

This creates a plethora of issues, from human rights to equality, and balances them against the rights of others to be safe in their workplace. In addition, it raises issues around the possible criminal implications of forcing someone to be vaccinated against their will.

  1. Potential Criminal Implications
  2. Human Rights and Equality
  3. Can an Employee Be Dismissed for Refusing the Vaccine?
  4. A Safe Environment for Others
  5. A Reasonable Solution
  6. Does an Employee Have to Tell Their Employer?
  7. More Legal Articles

Potential Criminal Implications

Potential criminal implications of forcing a Covid-19 vaccine

The Offences Against the Persons Act 1861 s20 states that an unlawful wounding would occur if a person were forced to have a vaccination against their will. A wound means ‘a break of the skin’. This statute still remains in force today.

Human Rights and Equality

Compulsory medical treatment or testing is contrary to Article 8 of the European Convention on Human Rights meaning that it is a human right to refuse medical treatment if you wish to do so. Refusing medical treatment could be because of deeply held religious or other beliefs, and this brings into play the Equality Act 2010. This statute states an individual is protected from discrimination from nine possible characteristics including: age, disability, gender re-assignment, pregnancy and maternity, race, religion or belief and sex.

So, an employer cannot force an employee to be vaccinated.

Can an Employee Be Dismissed for Refusing the Vaccine?

The short answer is no. If they were, then it would amount to an unfair dismissal and the employee could justifiably take the employer to an employment tribunal for discrimination. The case would be brought under the Equality Act 2010 in that the claimant’s refusal to be vaccinated is founded on a fundamental belief or on religious grounds. It would of course, be for the claimant to prove that she/he has such beliefs.

The situation would be the same if the claimant felt that they were being victimised, because of their belief, to such an extent that they felt that they could not continue being in the employ of the employer, and consequently, resigned. This would amount to constructive dismissal. The result being the same as if the employer had dismissed the employee – an employment tribunal case could ensue for unfair dismissal.

A Safe Environment for Others

Can an employee refuse the Covid-19 vaccine?

So how can an employer manage such a situation if there is a statutory duty to provide a safe environment for employees in the workplace? The Health & Safety at Work Act 1974 places the responsibility on employers to protect the ‘health, safety and welfare’ at work of all employees and includes others on the premises such as temps, contractors and visitors.

This appears to be in contradiction to the premise that it is an individual’s right to refuse the vaccine. The only way to manage this is to impose certain guidelines on employees such as those we are all asked to follow during the current pandemic, e.g. social distancing, mask wearing and sanitising/hand washing etc.

Of course, all this does depend on job that an employee is employed to do. For example, working in an office environment, following government guidelines may work reasonably well. However, if the employee that is refusing to accept the vaccine is working in social care or in medical care with vulnerable patients, then the standards may change. Being on the front line in such a situation may well mean that refusal to be vaccinated may place those who have not yet been vaccinated (perhaps due to age, medical conditions, or access), as well as themselves, at risk.

A Reasonable Solution

In these circumstances, it may be prudent to find alternative work for the employee until it is safe for them to return. A reasonable solution such as this should be acceptable to an employee.

If the employee doesn’t find it acceptable, they might bring an unfair dismissal case against the employer on the basis of discrimination. A Tribunal hearing such a case weighs up the rights of the employee to refuse the vaccine, taking into account the nature of their work, the alternatives offered, and how many others would be put at risk. In other words, they would look at the situation and apply a test of reasonability.

Does an Employee Have to Tell an Employer?

If the employer can demonstrate that asking staff to be vaccinated is a reasonable management instruction, then asking them for this information will also be reasonable. However, just as you can’t force them to be vaccinated, you also can’t force them to reveal their vaccination status.

Again, equality laws will come into play if there is a risk that revealing their vaccination status will result in discrimination within the workplace.

If they do agree to tell, then this will constitute sensitive personal health data and the organisation will need to comply with GDPR. The same applies to information about who has not been vaccinated and why.

The best policy is one of clear communication. Employers should explain why they’d like staff to be vaccinated and why they’d like the information about their status. An employer should give the opportunity to discuss this privately and look at ways to mitigate the risks and offer alternative working options. This way, as an employer, you have done your best to provide the right working environment, have kept staff informed and engaged in the process and ultimately reduced the chances of a successful Tribunal claim, should it unfortunately come to that.

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Businesses need to reassess their workplace culture and technology as workers prepare to return to the office

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There’s no question that 2020 turned the workplace on its head. The start of the pandemic led companies to reconsider everything from their office layout to how they can foster a sense of community when a majority of team members are working from home.

Tom Vecchione, Principal at architecture and interior design firm Vocon, believes the pandemic has only made the concept of the office and what it represents to employees more powerful. Of the executives he works with, Vecchione says, “What they miss the most is the level of ambition the office created for their teams and their staff. It’s very much part of the emotional, inspirational aspect of what an office gives us and your teams.”

To get back that missing spark, and to address the larger question of the office and its role overall, companies are starting to reassess their relationship with urban real estate.

What’s influencing them? “Everyone’s waiting for three factors,” Vecchione says. “What’s my peer doing, which is a very big influencer; what does science tell us we can do; and what do government agencies say we should do. This waiting game is creating uncertainty and volatility in the real estate market.”

The way Vecchione sees it, three tiers of employee engagement will emerge within the workforce: mission-critical onsite employees who must be onsite to do their jobs; hybrid employees who can split their time between onsite and offsite; and offsite workers who can effectively do their jobs without ever using the office as a permanent home. In order to gauge the demand for workspaces moving forward, Vocon is analyzing companies’ post-pandemic needs. “Executives aren’t sure why people really need to go back — if it’s for mentorship, culture, learning.” Vecchione adds that the purpose of the workspace isn’t just to facilitate the work itself, but to create knowledge, inspire culture, build a career path, and bring clients and talent “into the fold.”

There’s more to the workspace of the future than socially-distanced desks, sound barriers, and outdoor meeting rooms, and many employees find their job performance suffers when they lack access to a communal office. According to a 2020 survey conducted by enterprise platform Smartsheet in conjunction with 451 Research, 82% of workers feel less productive at work since going remote.

As companies start to consider the slow or staggered transition back to the office environment, they’re also thinking about something else: technology, and the key role it plays in the culture of collaboration.

“What I find fascinating is that we’ve all owned this technology and never really operated in this way,” says Anna Griffin, Chief Marketing Officer of Smartsheet. “(Companies) know that we’re going into a hybrid world, and they’re going into the new year in build mode.”

Smartsheet is seeing “a lot of enthusiasm for working this way,” along with signs of recovery and greater investments in technology, Griffin says. All of this signals that leaders are on board with modifying their business strategies.

Traditionally, changes like these have come straight from the top. Insider’s Human Impact of Business Transformation study, a project designed to gauge perspectives on business transformation as they relate to brand purpose, mental resilience, and more, shows that among 68% of respondents, it’s the leadership teams that drive such efforts.

But this model may not last. Employees are taking a larger role in the technology they use, and the workplace experience overall. Instead of the old approach, where management implements processes and expects teams to follow suit by using the tools they provide, Griffin is seeing employees driving these decisions. “The way you work, and the way people are able to participate more, is truly becoming democratized. And so there’s this shift in power. You’re doing something collectively together,” she says.

Ricardo Vargas, former Executive Director of Brightline Initiative, a coalition designed to help companies bridge the gap between strategy and execution, is seeing a similar trend as businesses prioritize employee satisfaction. The companies that succeed at transforming their business, Vargas says, also ensure their leaders are just as immersed in the company culture as their teams.

“In the more traditional organizations, the leadership lives in a castle on the top floor that nobody gets access to. You don’t talk to them.” Rather, Vargas says, leadership should be approachable and accessible, wherever they are.

Organizations now face an opportunity. The pandemic has highlighted weak spots in corporate culture, and leaders are starting to address those proactively. “We need to learn how to lead in permanent disruption because we are living in a permanent state of transformation,” Vargas says.

When it comes to designing the new workplace, Vecchione believes the physical work environment will never go away. Its purpose, however, may well be reinvented. Employees will one day find themselves in shared spaces again — and when they do, they’re likely to discover that a change was long overdue.

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Employers claim they want to improve workers’ wellbeing, but refuse to do the one thing that will actually help: pay them more

Woman meditating work
HR departments love spending money on wellness programs and meditation apps.

  • Like sexual harassment training and gender equity initiatives, there isn’t much evidence that employee wellness programs work.
  • Yet HR departments seem intent on pouring money into health-tracking and meditation apps.
  • The best thing employers can do is pay their employees more and reduce their economic stressors.
  • Catherine Liu is professor of Film and Media Studies at the University of California Irvine. She is the author of the book Virtue Hoarders: the Case Against the Professional Managerial Class.
  • This is an opinion column. The thoughts expressed are those of the author.
  • See more stories on Insider’s business page.

I take the University of California online anti-sexual harassment training course regularly, and when I do, I believe I’m helping the world become a better place. Like most working women, I’ve suffered harassment at work, and despite evidence from empirical studies and from my own experience that the training doesn’t work and that I take it to limit the liability of my employer in a sexual harassment lawsuit, I will myself to believe in it.

Staff and faculty who have been harassed simply suck it up and move on, changing positions if possible or just avoiding the offender. Occasionally, a scandal breaks through and a harassment case leads to the dismissal of a famous professor or administrator; yet, the victims who brought the suit forward usually live forever with the reputation of being a “troublemaker.”

Despite countless initiatives, corporate and university gender equity programs failed to mitigate damage done to the lives of working women wrought by COVID lockdowns as work moved home and online, and schools and daycares closed. Women’s participation in the workforce has dropped to 1988 levels, with women bearing the brunt of COVID unemployment figures at every level of income and education: four decades of progress for women at work has been undone in one year.

Like sexual harassment and gender equity initiatives, employee wellness programs are another managerial innovation that large organizations love, despite mounting evidence that such programs do not significantly improve employee health or save employers money.

Employee wellness programs don’t work

The University of Illinois-Champaign-Urbana and Rand Corporation studies have shown that employee participation in employee wellness programs were low and that those who used them tended to be healthier and better paid – essentially resulting in a covert shift of organizational resources away from the lowest paid and unhealthiest employees to the best paid and healthiest ones. The Rand Corporation findings focused on maximizing employer return on investment, and recommended that employers focus their wellness programs on employees with the most severe health issues.

And yet, if your boss is paying attention to your muscle mass, poor sleep, lack of exercise or bad eating habits, I can guarantee that they are not interested in your wellbeing. They are, instead, very worried about having to pay higher health insurance premiums if their workforce is plagued with chronic ill health. Wellness programs neither save employers money nor increase employee wellbeing, but they continue to proliferate. Human Resources wellness centers cannot stop spending money on health tracking, meditation, and exercise apps that are “free to download” onto employee smartphones.

Through my workplace, I can download MyStrength, an app that helps me cope with stress in real time, or I can try the Headspace app, which will also help me “weather the storm” through meditation and exercise. If these two apps do not get me to optimal wellness, there is an app that reminds me to step away occasionally from my desk to do downward-facing dog.

As retired Harvard Business School Professor, Shoshana Zuboff shows in her book, The Age of Surveillance Capitalism, once data gathering reaches a certain scale, it becomes enormously valuable and exploitable. What is to prevent employers from monetizing the data gathered by all those “free” wellness apps? Very little, according to Zuboff, because privacy regulations lag behind tech innovations.

Poor economic conditions drive wellness

Wellness initiatives are designed to disguise the role that a solid paycheck plays in people’s overall wellbeing – in fact, low pay is one of the greatest stressors for workers of all races and sexes. Low socioeconomic status and poor working conditions lead to higher levels of cortisol in the bloodstream. Other indicators of stress, like diabetes and obesity, increase across populations with lower job status and lower pay.

People who make good money and have a high degree of control over their work lives also enjoy dramatically greater degrees of mental and physical wellbeing. A recent study on Universal Basic Income (UBI) from Stockton, California, a small, economically struggling city in California’s Central Valley, confirmed the connection between money and wellbeing. For two years, the program gave $500 a month to 125 randomly selected residents living at or below the city’s median income.

Initial results of the study show that the monthly cash infusion led to dramatic decreases in depression and anxiety in recipients of the no-strings-attached cash. Improved mental wellbeing allowed recipients to pay debts, find work, and deepen relationships with friends and family. The findings from Stockton disprove the fantasy that working class and poor Americans would be profligate with cash infusions. UBI is a controversial issue, but the Stockton study offers important lessons about the power of money in relationship to mental health and overall well-being.

No boundaries at work

If the pre-woke workplace was filled with sexism, racism, and overtly punitive evaluation protocols that encouraged the promotion of networked, white, male employees, the contemporary workplace has evolved into experimental sites of surveillance and data-gathering, all in the name of “caring.”

Covertly coercive, wellness initiatives serve as excuses for upper management to push aside questions of pay and pay equity for superficial engagement with our most private experiences. But, the last place I want to talk about my experiences of trauma is at work; I do not want my workplace to be involved with my daily practice of healing my wounds.

Just as school was my refuge from the unpredictability of home life when I was a child, I looked to work as a place where I could put aside, if only temporarily, my hair-trigger adrenaline-fueled over-reactions to setbacks and obstacles in order to better engage in the meaningful, joyful exercise of collectively exercised reason and argument. As a professor, I have come to believe that the best thing I could do for my students, traumatized and not, is to provide a space where the use of one’s intellect and powers of reason are respected, rewarded, and recognized.

In the view of my employer though, my approach to trauma is both too old-fashioned and too commonsensical. In the past month, I have been asked to participate in training courses in trauma-sensitive pedagogy, whatever that could mean. The way in which COVID has impacted working mothers and the lowest paid employees at the university has hardened my cynicism about pseudo-progressive managerial initiatives to care for employee wellbeing and promote workplace equity.

It is not social media addiction or millennials who are to blame for the deterioration of personal boundaries and the demise of critical thinking in our age: it is the pseudo-therapeutic initiatives of our over-managed world that have made it dangerous for us to insist on maintaining boundaries anywhere, but especially at work. Managerial initiatives infantilize workers while undermining our autonomy as private, suffering subjects.

For those on the bottom of the pay scale in any organization, a bigger paycheck would improve their mental health far more than any wellness or trauma initiative imposed upon us by HR. For those at the top of the payscale who are rewarded for finding ways to pay their employees less, this is a hard, if not impossible lesson to learn.

Catherine Liu is professor of Film and Media Studies at the University of California Irvine. She is the author of the book Virtue Hoarders: the Case Against the Professional Managerial Class (University of Minnesota Press, 2021). She lives in Southern California and writes for Jacobin and has appeared on Chapo Trap House and Bungacast talking about her book and the class formation of credentialed elites in the 2021 global economy.

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JOIN US FEBRUARY 18: Talent leaders from Mastercard, Lenovo, and Buffer will explain how to build an inclusive hybrid workplace

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Just one in 10 employers say they expect all their staff to return to the office post-pandemic.

Instead, most workplaces will take a hybrid form, with some employees dialing in from their couches and others convening in conference rooms.

The challenge for managers – and especially for human resources leaders – is creating a culture in which everyone feels like they belong, no matter how they prefer to work.

Join us Thursday, February 18, at 1 p.m. EST/10 a.m. PST as Insider correspondent Shana Lebowitz hosts a live panel discussion on building an inclusive hybrid workplace.

In this webinar, we’ll hear from folks who think about this topic on a daily basis, including:

  • Buffer chief of special projects Carolyn Kopprasch
  • Lenovo chief diversity officer Calvin Crosslin
  • Mastercard chief people officer Michael Fraccaro
  • Workplace strategist Erica Keswin

These thought leaders will discuss the most important steps employers should keep in mind, common traps to avoid, and how they’re rebuilding the culture at their own companies.

You can sign up here if you’re a Business Insider subscriber.

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