Adam King is a criminal barrister at QEB Hollis Whiteman.
February 11, 2021
adamhpking
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When Pimlico Plumbers boss Charlie Mullins announced his plans to make the Covid jab compulsory for his staff, the vaccines minister Nadhim Zahawi described the proposal as discriminatory. Mullins replied that his lawyers, Mishcon de Reya, had assured him it wouldn’t be. Three weeks on, the Telegraph is reporting that the issue has become “the centre of a row in Cabinet”.
As a piece of messaging, “no jab, no job” has much going for it. Like its progenitors “no hard hat, no work” and “no mask, no entry”, it takes an instance of risk-aversion most of us can at least see the sense in, frames it as a value-free universal truth, and adopts the threatening syntax of officialdom to convey its contempt for the public. Add to that the phrase’s enchanting monosyllabic alliteration, as well as the fact that many people will find the idea completely outrageous, and it becomes hard not to see it catching on.
But is it discriminatory? Having an unequal effect that correlates with a “protected characteristic” is not the only way for a policy to be bad, of course. But a claim on those grounds is a nuclear weapon in Employment Law — and a way for employees with less than two years’ service to attack an unfair dismissal — so it’s a good place to start.
The Equality Act says there’s no discrimination if a requirement is “a proportionate means of achieving a legitimate aim”. One such aim might be the requirement in Section 3 of the Health & Safety at Work Act 1974 — alluded to by both Mullins and the Telegraph’s Cabinet source — to look out for anyone whose health might be negatively affected by your firm’s activities. As for proportionality, perhaps there’ll be an exemption for pregnant women and Christian Scientists — although presumably not for BAME people, who, for reasons no one has yet plausibly explained, are on average considerably less keen on the idea of this vaccine.
But the trickiest question in the discrimination issue is the same one raised by those who would object to a ‘no jab, no job’ policy altogether: namely, is the increased risk of Covid-harm from unvaccinated plumbers sufficient to justify sacking people for refusing to undergo a medical procedure they don’t want?
Now, if we were only talking about, say, doctors and nurses, there might be a stronger argument for compulsory vaccination: the increased risk to others is greater in their case; they’re a small minority of the population; and there are, after all, many other ways to earn a living. Let’s not forget, it has long been impossible for most doctors in the UK to do their jobs without being inoculated against Hepatitis B. But it isn’t only doctors and nurses, and it isn’t only plumbers.
Almost every employer will want to reduce the risk of transmission among its customers and staff — out of an admirable sense of public duty no doubt, and also out of a desire for protection against legal claims, reduced sickness absence, and competitive advantage. And if every employer adopts the “no jab, no job” mantra, Mullins’ argument that workers who don’t comply can “go and work for someone else” rather loses its force.
And the fact that the ‘no jab, no job’ rule could be applied to almost everyone is a strong indication that it has no intrinsic connection to most people’s jobs at all. Yes, unvaccinated plumbers, and shop assistants, and bus drivers — even tree surgeons — increase the risk of spreading the disease. But so do unvaccinated podcasters with private incomes when they stand in the queue at the post office. Why should the latter be the only kind of person we allow to make a genuinely free choice about the vaccine?
At this point we might start to wonder whether the rubric of employment law — depending as it does on a motley national collection of badly written policy documents and one-sided contracts — is really the appropriate field for planting public health requirements. Might it not be more honest for our Government to use instead the traditional system for the administration of life-ruining penalties: the criminal law?
Statutes create crimes by saying that something is “an offence”. And while those magic words open the door to harsh consequences (although mostly less harsh than being made permanently unemployable — only 5-10% of sentencings each year involve custody) they also guarantee various protections far beyond what’s available at the Employment Tribunal, let alone at an internal disciplinary hearing. The big difference is the higher standard of proof (‘sure’ rather than ‘on the balance of probabilities’) but there are many others, all of which make it much harder to convict someone of a crime than to sack them.
And it’s noteworthy in this context that the criminal law, by means of the Rehabilitation of Offenders Act 1974, seeks to mitigate the dire consequence of unemployability. You can go to prison for six months and a couple of years later, if you apply for a job, you are entitled to tell them nothing about it. “How long will it be on my record?” is a question all white-collar clients ask when they’re offered a plea deal. If they were facing the sack, outside of the criminal jurisdiction — for, say, refusing a medical procedure — the answer might very well be “forever”.
There’s a clear analogy here, isn’t there, with Free Speech. If everyone you might conceivably work for — manufacturers of everything from ice-cream to razor blades, every ancient Public School, every guardian of the nation’s architectural heritage – requires you to uphold “their” “values” in all visible areas of your life, you will have little choice but to comply. It might start with a particular company, or industry, with a particular need to maintain strict speech codes. Soon, others, noticing the benefits of such policies, follow suit. Before long a deep-sea diver loses his livelihood for sharing an edgy meme on Facebook.
Of course, a plumber with a barbarous social media output might not be as dangerous as a plumber with a higher-than-average chance of carrying Covid, but the principle and the process are the same: individual employers seek to reduce a potential harm by threatening dismissal, and the collective effect is of a national rule. That rule applies across the social spectrum, with potentially life-ruining consequences for transgression — though accusers need not prove anything beyond reasonable doubt — and often with little prospect of rehabilitation.
I have represented, in Professional Disciplinary Tribunals, many men and women who have said — or sent — inappropriate things. Some manage to hang on, some don’t. Those that don’t are often just as devastated by the consequences as the criminal client who has to leave the dock by the back stairs after a guilty verdict. But almost none of them have done anything they could sensibly be prosecuted for. The ever-reducing frequency with which that fatuous free-speech stick-man strip gets posted suggests that the downside of this phenomenon is beginning to sink in.
To treat these issues as something for employers’ discretion rather than as a matter of Public Law not only deprives us of the appropriate protections in the trial process, but also — and more worryingly — evades proper consideration (public and parliamentary) of the balances to be struck.
When it comes to free speech, the Law Commission is currently considering responses to its consultation on Hate Crime legislation. Some of the proposals provoked considerable alarm across the political spectrum — particularly regarding the plan to extend hate-crime laws into private homes — but as the Chief Executive of the Index on Censorship Ruth Smeeth said, “We need to have a proper national debate if we are going to start putting restrictions on language like this.” Well quite.
As with Free Speech, so with vaccines. I hope Charlie Mullins was right when he said, winsomely, “the entire thing will very soon be a non-issue”. But in case he’s wrong, we must not allow compulsory vaccination to be quietly smuggled in through the back door in ten thousand workplace health policies. The Telegraph reported a Government source as saying that where there is an “unjustified” fear of the jab, “we have got to help people get into the right place”. I do hope that isn’t a euphemism for “force them to take it”. But if it is, there’s a right and a wrong way to attempt to do it.
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