Employment rights offer UK immunity to mandatory workplace Covid jabs

A growing list of US businesses are demanding that their staff be immunised but corporate culture, and law, differ in Britain

CNN hit the headlines on Friday after firing three employees who went into work unvaccinated against Covid-19, in what it called a violation of company policy. The US media organisation requires all staff entering its offices or working on assignments with other team members to be fully immunised.

The news network is at the more extreme end of corporate America’s response to the recent surge of the coronavirus Delta variant, in a country where vaccination take-up rates have split down party lines.

In recent days, a whole range of US household names – from the mega-retailer Walmart to the tech firms Google, Uber and Facebook, and the meat processing firm Tyson – have demanded that some or all of their staff are immunised before entering the workplace. But could employers in the UK implement similar mandatory vaccination policies and would they be legally enforceable?

The UK’s corporate culture differs from the one across the pond, with British business operating more often through encouragement than compulsion. Meanwhile, UK workers enjoy greater levels of employment rights and protection than their US counterparts. Given this moral and legal minefield, the vast majority of the UK’s large employers have been happy to sit out the vaccine requirement debate, often reassured by the country’s low levels of vaccine hesitancy.

British employment lawyers had expected a flood of queries from clients over whether they could mandate the vaccine among their workforce – queries which have not arrived. It appears that many firms have ducked the argument and decided not to get involved in what many consider their employees’ personal choice. Other companies have delayed making any changes to their workplace policy, given that many office-based workers have yet to return full-time to their desks.

Charlie Mullins, the outspoken founder of Pimlico Plumbers, courted controversy in January when he said he would introduce a “no jab, no job” policy for its 400 staff. Existing work contracts aren’t likely to include any mention of Covid jabs, meaning Pimlico’s lawyers would have had to draft new ones. Another firm that has put its head above the parapet is Bloomsbury, the publisher behind Harry Potter. It has told its UK staff that they need to be double-jabbed before they can return to its offices, or they will have to continue working from home.

Organisations planning to make vaccination a condition of returning to the workplace will have to tread carefully. Much hinges on whether it could be considered a “reasonable request” by an employer. Firms would also have to identify their business need for demanding that their staff are vaccinated – easier for a company that provides care or a service in someone’s home, less so for office-based employers.

If vaccination requirements aren’t appropriately handled, companies could find themselves facing accusations of discrimination or unfair dismissal. The issue throws up a range of questions. How would they treat workers who aren’t able to get a vaccination because of a medical condition? What about younger members of staff who haven’t yet had the opportunity to get one? Anyone who wasn’t allowed back into the office to reconnect with colleagues might – quite understandably – feel unfairly treated.

Companies who do stride across the moral minefield of asking employees to show proof of vaccination face opening another can of worms. Employment lawyers warn that someone’s vaccine status would be classed as sensitive personal information, now known in legalese as “special categories of personal data”. This information has to be carefully processed, and stored, to avoid breaking GDPR regulations.

As the long-running legal cases against gig economy companies such as Uber and Deliveroo have shown, it can take many years for workers to assert their rights under UK employment law. But it seems unlikely for now that many British employers will demand their staff are fully vaccinated before returning to the workplace, given all the legal hazards it would entail.

Alt-milk battle leaves a sour taste about Oatly

The lesson from £7.9bn alt-milk brand Oatly’s defeat by Cambridgeshire family farmers is clear: pick your battles.

The Swedish brand made a right breakfast out of a trademark case against its much smaller rival PureOaty, produced by Glebe Farm; the high court ruled that any similarities were “at a very general level”.

Oatly said it had pursued the action to protect its brand, saying: “If we were to let one company pass because they, like Glebe Farm, seem to be one of the good guys, that might leave the door open for the bad ones”. The heavy-handed legal move drew ridicule and even threats to boycott Oatly, damaging its image as a cuddly feelgood alternative.

In contrast, the battle has been marketing gold for the Rayner family who run Glebe Farm, bringing their drink to a wider audience and potentially helping them win sales from their rival, particularly from those who prefer to buy British.

Brands should consider carefully before embarking on such David and Goliath battles. Is there more risk from a high-profile battle than from the smaller rival itself?

Sainsbury’s was left looking mean, for example, after legal threats against a small Tyneside store called Singhsbury’s. Morrisons came off much better with its indulgent response when the store’s cheeky owner, Jel Singh Nagra, switched the name to Morrisinghs. The supermarket said it was flattered and wished him well.

Again, Poundland’s Twin Peaks bar gained new promotional heights when Toblerone’s owner, Mondelez, tried to block production of the confectionery copycat. The companies eventually reached a deal in which the packaging was changed, but Poundland’s bar might never have got off the ground if Toblerone had adopted more subtle tactics.

Similarly, Oatly may have thought it had a chance to stamp out its rival early. But now who knows? PureOaty may have them for lunch.

Minister’s answer to driver shortage is downright dangerous

Whether it be milk missing from the corner store or a delayed Velux window leaving a neighbour’s loft extension incomplete, the signs of the lorry driver shortage are increasingly evident to consumers. The creaking supply chain has long been covering gaps, before Covid and the pingdemic stretched it too far. Yet the government’s only policy response, last week reaffirmed and extended till October, is to tweak the rules to let drivers work longer hours.

At least Grant Shapps’s policy has united employers and unions: this is half-baked, counterproductive, and downright dangerous. As well as the risks from fatigue, hauliers point out that asking already overworked drivers to do more is hardly the way to attract much-needed new blood into the industry.

While there are several long-term factors behind the shortage – from the cost of training, the backlog of licence applications at the DVLA, and payroll reforms to clamp down on bogus self-employment – the biggest single jolt was Brexit. Thousands of EU drivers have returned home and others may not come to fill the gap. In desperation, retailers are outbidding each other with £1,000 signing-on bonuses and other incentives. John Lewis dangled a £5,000 pay rise last week. It might be tempting to see a Brexit dividend here for the remaining drivers. But others have seen the sharp end of the new arrangements: more red tape, and customs rules that have prolonged their trips and even removed their sandwiches when crossing the Channel.

The daily woes of individual drivers, from the lack of toilets and parking facilities to the forced diversions and woeful contingency planning in Kent, paint an unvarnished picture of the regard in which workers are held by the government – as any in the public sector will know too well. Extending drivers’ hours does not speak of building back a better future – it simply betrays ministers’ instincts, now outside the EU, to drive standards down.

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