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Summer 2021 39 A s we slowly get back to some kind of normality, the question arises as to whether or not an employer can force an employee to continue working from home if they don’t wish to do so, or vice versa and, for those returning to the workplace, whether employers can insist upon a vaccination. WORKING FROM HOME OR THE OFFICE The answer to the first question depends, in a small way, on whether you have an employment contract which states where the place of work will be. Of course, for employees there is always room to negotiate if their employer is approachable enough. Unprecedented times demand unprecedented negotiations. If you’ve been working from home, have the facilities to do so and your employer has been quite happy with your productivity, then there should be no reason why you can’t negotiate with your employer to continue doing so. On the other hand, if a job cannot be done satisfactorily from home and your employer can demonstrate this, then you may find it difficult to claim any rights to continue working from home if your usual place of work, pre-COVID, was your employer’s premises. If you feel you cannot work in the new way your employer has stipulated, whether that’s asking you to stay at home or asking you to return to the office, and this in turn makes you feel you have no choice but to leave, you may have a constructive dismissal case against your employer. It’s a delicate and unprecedented situation. I have seen some business owners ask their employees what they would prefer to do, and quite often this works out well, as some will want to return to the workplace and others will not. Alternatively, some employers have a rota system in place, where employees come into the office two or three days per week and by taking it in turn, this helps to maintain safety. Whatever the situation is, we have not experienced the like before and would hope that employers are sensitive to the wishes of their employees and vice versa to try to reach an amicable arrangement. CAN YOU BE FORCED TO HAVE A VACCINATION? There is no law in the UK which requires mandatory vaccination, as much as some 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. 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. POTENTIAL CRIMINAL IMPLICATIONS 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. In these circumstances, it may be prudent for employers 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 not, and the employee brings an unfair dismissal case against the employer for constructive dismissal on the basis of discrimination, then a Tribunal, hearing such a case would weigh up the rights of the claimant to refuse the vaccine, with the nature of the work they do, the alternatives offered to them, and how many others would be put at risk, if they were to continue in their role without vaccination. In other words, they would look at the situation and apply a test of reasonability. In all these instances, I would recommend constructive dialogue between employer and employee to try and find a solution that works for everyone. << ABOUT THE AUTHOR Amanda Hamilton is Chief Executive of the National Association of Licensed Paralegals (NALP), a non- profit membership body and the only paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres, accredited recognised professional paralegal qualifications are offered for a career as a paralegal professional. www.nationalparalegals.co.uk “If you feel you cannot work in the way your employer has stipulated… you may have a constructive dismissal case against your employer.”