In its preliminary findings released on October 1, the Employment Authority said the Civil Aviation Authority (CAA) was lawful in terminating four airport security staff for failing to comply with a Public Health Order and receive a Covid-19 vaccine by August 26, 2021. A substantive hearing is still to follow.
The case of VMR v Civil Aviation Authority involved four aviation security officers who declined to get the Covid-19 vaccine due to the risks they saw to their health and safety and that of their families if they had the Pfizer jab.
Unlike most employees, the officers were required to be vaccinated under Public Health Orders (the Covid -19 Public Health Response (Vaccinations) Amendment Order 2021) issued by the Government this year.
When the CAA decided to terminate non-complying employees from their roles, the affected security officers filed statements of problem in the authority seeking reinstatement.
The authority, after careful consideration of the competing interests at hand, ultimately found in favour of the CAA and declined to make the orders sought.
They also found:
• The process adopted by the employer in reaching the decision to terminate was arguably what a fair and reasonable employer could have done in the circumstance.
• Any argument as to the illegality of the Public Health Order itself would be unlikely to affect the authority's finding that the employer's actions were justified. The test of justification requires assessment of the employer's actions at the time of the dismissal, and at this time the CAA was and continues to be subject to the Public Health Order.
• The employer's likely hardship if reinstatement were ordered outweighed the likely hardship to the affected employees. The employer cited being placed in breach of Public Health Orders and their obligations under the Health and Safety at Work Act, as well as the financial hardship they would face by having to pay the four staff (who would remain suspended) while also paying other vaccinated employees to fulfil their roles.
The process followed by the CAA was found to probably be "what a fair and reasonable employer could have done". The authority highlighted the key procedural steps the employer followed:
• The employer, in conjunction with all relevant Unions, took steps in early 2021 to educate, support and encourage all staff to get the Covid-19 vaccine.
• In March 2021, the employer's health, safety and wellbeing team undertook a health and safety risk assessment, which concluded that requiring vaccination was a necessary step to reducing the risks presented by Covid-19.
• In late March 2021, all employees were sent a letter that proposed the approach the employer was to take and provided a form that employees could have their doctor complete, if it needed to be noted that they were medically exempt from vaccination.
• Meetings were held with the employees throughout the year to advise them on the steps that were being proposed, and the potential effects on employment of non-compliance with the Public Health Orders. Once the orders came into force, the employer continued to hold meetings to educate, support and encourage vaccine-hesitant employees.
• When the Public Health Orders were introduced the employer redeployed staff, where possible, into different roles in the business. They also hired a work broker to find employment for staff who did not wish to get vaccinated and who could not be redeployed.
Some reassurance for employers
This decision provides some limited reassurance to employers that if careful risk assessment and consultation processes are followed, the authority may be inclined to find that dismissal on the basis of vaccination status is justified.
The decision's relevance to most employers is restricted because it involves employees covered by Public Health Orders, rather than employees who an employer has assessed as occupying roles that it considers to be "high risk". However, it may indicate the sway of the authority in what is currently an untested area of the law.
Any decision to move towards requiring roles in your business to be occupied by vaccinated workers should not be made without extensive legal advice. We are experts in this field and are available to guide your business.
• David Grindle is director in charge of the employment law team at WRMK Lawyers. He has practised in this area of the law for 17 years.