There is an almost surreal complexion upon life as we live it at the moment. It feels like we have fallen into the sequel to Alice through the Looking Glass and one day we will all wake up and stop living the dream.

Never for a moment in 2019 did I think I would be writing articles about vaccination policy. If I did it would be easy. We live in a free society and you cannot impose a policy which involves assault even if it is for your own good. End of article. Job done. We can all go home.

Unfortunately it turns out this is real life and it does not always go as planned or how it ought to be. The pandemic has generally been terrible for the world but it has a few positives one being a very salutary reminder of the fragility of life and commerce. I think there is also a sense that if you get a chance to do something in life take it and a reminder of how clever and adaptable human beings are. Not very wise too often though. It has been remarkable to see the way most Governments and medical establishments have worked hard in a united effort to defeat the virus. They haven’t yet fully succeeded but they have made great strides and enabled the rest of us to achieve some of what we call normal.

It looks like it is the vaccines which are making the most difference to the spread and the effect of the pandemic but this has led to a difference between two groups of people – the vaccinated and the unvaccinated and, I guess helped by the pernicious influence of social media, feeling seem to be running high on both sides.

The Government, I believe correctly, has nailed its colours to the vaccination mast and has even introduced the controversial policy on making it mandatory for all staff in care homes to be vaccinated or lose their jobs. That really illustrates the horns of our libertarian dilemma upon which we are skewered.

I am not so sure that we are quite as free as we think we are in this society and we have some very worrying developments on the way. The advent of 5G and the universal use of the internet for almost all our transactions and human interactions means that our electronic and physical life will be completely tracked. Everything you do, write and say will be capable of being recorded. I think that is very frightening for people who want to live freely, hopefully all of us.

In the context of this article it means the freedom not to be injected with a substance we, for good or bad reasons, distrust and the freedom to be sceptical about what we are being told whether that is by our Government or by medical professionals.

We have plenty of other examples of situations in which our personal freedoms have been curtailed by our laws. I will pick out a few for consideration.  In 1973 we passed a law to make motorbike helmets compulsory. I am just about old enough to remember the protests of motorcyclists who were desperate to have the freedom to die when they came off their bikes and have their teeth covered in flies. It all seems a bit silly when you look back. The point of that freedom was that you pretty well only hurt yourself if something went wrong. The rest of us paid for your nursing care with our taxes but it is hard for anyone to complain about that when we all do something which is paid for through taxation. Maybe someone might not ride a motorbike without wearing a helmet but perhaps they smoke, have diabetes caused by my obesity, need a hip operation, have too many kids etc etc. We all have something.

The same is true of the seatbelt law. Again there were protests from people who  wanted the freedom to dive through a windscreen in a head on collision but by and large the logic of doing something simple to avoid severe personal injury prevailed. In 1989 another seatbelt law was introduced, this one concerned making sure children travelling in the back of a car wore seatbelts.  Again this curtailed our freedom to live our lives the way we wanted but an argument along the lines of I want the freedom to ensure my children do not wear seatbelts while in the back of a car so they are at greater risk of dying in an accident did not gain much traction. The equivalent law for adult passengers was passed in 1991.

In July 2007 we passed a law which banned smoking indoors in public places. We had known and accepted for many years that smoking was harmful to the individual smoker and we allowed them the freedom to harm themselves in pursuit of tobacco company profits. By 2007 we seemed to have enough evidence that smokers caused other people harm with their habit that we banned it indoors. The protests were muted. Smoking wasn’t banned but smokers were forced on to pavements and doorways whatever the weather. Another example of where personal freedoms were curtailed for the benefit of others.

Thus we arrive at 2021 and Covid vaccines and vaccination policies. Clearly there are differences between this and other situations in which freedoms have been curtailed. There is a pressing public health emergency (I hope that is not expressing it too strongly) and an imperative need for action which affects everyone in our society. The other major difference is that the proposed action is for everyone to be injected with a vaccine. If it wasn’t sanctioned by Government, I guess this might be regarded as an assault.

Unlike smoking, child seatbelt laws etc no-one will be required to vaccinate by law. The question is “should the unvaccinated be prevented from working, travelling abroad or going to places where there are lots of other people present.”. You are not penalised in law but you are severely disadvantaged if you want to fully participate in society.

This is a novel situation for society to deal with. The other laws I mention had long gestation periods and pressure which built up gradually so that the arguments and benefits were pretty well known and widely accepted. Here we are in a bit of a hurry. The long gestation period meant that people found it easier to accept the science and statistics which lay behind the law and consequent reduction in their freedom. In the middle of a pandemic we don’t have the luxury of time and it has meant some peoples objection to vaccination is some fear the scientists and doctors could not have moved that quickly.

I suspect the scientists and doctors can always move that quickly it is the administration and bureauracy which slows them down.

So where does this leave an employer’s vaccination policy? Most of the ones I have seen so far talk about having cosy chats and trying to understand objections as a prelude to persuading employees that their objections are groundless. Most of this, I suspect, falls on deaf ears. Policies then talk about accommodating objections and finding different ways of working – working from home, social distancing etc. My experience of those who are against vaccination on principle are also those who are against mask wearing, social distancing etc. Second there are many jobs, particularly non-office jobs, which can’t be done from home and where social distancing measures are difficult. So where does this leave the employer? Can you and should you dismiss an employee for refusing to be vaccinated?

The dilemma you have as an employer is that you owe a duty of care towards the unvaccinated employee and to the rest of  the workforce for their health & safety. Damned if you do damned if you don’t? The key question is transmissibility. The health & safety of other employees is only engaged if an unvaccinated employee is more likely to spread Covid than a vaccinated employee. As I understand it the current position is that vaccination was very good at preventing the transmission of earlier variants but is less effective with the delta variant. The indications are that the vaccinated and the unvaccinated transmit Covid evenly during the first week of infection. Thereafter the unvaccinated remain infectious, the vaccinated do not. Clearly the first thing to note for any policy is that it must be prepared to change in reaction to the latest information. This could be change in the science, a change in the data or a change in the variant of Covid which means it is less transmissible. Until then my view is that you have to deal with what is in front of you and follow the science.

Sticking my neck out here I think the current legal position is in the right circumstances you can dismiss for a failure to vaccinate and a policy can reflect this. I think the science just about supports this at the moment and the Government has given a bit of a steer with their legal insistence that care home should be vaccinated. There is also talk of all NHS staff being vaccinated at the time of writing. That is a much larger and more controversial decision if it is made. Even if you adopt that as a policy it is right that you should take steps to deal with and accommodate objections whatever their basis. Ultimately as an employer you are going to have to make a decision. We are in uncharted waters so no precedents here to help you just a tough decision and a step off into the unknown.