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by Ralph A. Thorne
“The first thing we do, let’s kill all the lawyers.” – Shakespeare, Henry VI
If the contrasting legal opinions as to the respective rights of employers and employees inspire similar thoughts as those of ‘Dick The Butcher’ in Shakespeare’s Henry VI, the murderous public needs to be reminded that lawyers argue opposing legal opinions in the courts every day.
For the trauma that COVID-19 has visited upon our societies and upon many employees, it is a morally daring proposition that an employer has the right to dismiss an employee who refuses to accept the vaccination. Admittedly, law and morals sometimes do not coincide.
Lawyers will nevertheless concede that, after these public discourses, Judges ultimately must decide and resolve the legal crisis that has inevitably emerged from the health crisis.
Those who argue that the science is still unclear as to the efficacy of the vaccines, feel no less strongly in their conviction, while those who trust the science remain confident in the eventual success of this medical project.
Opinions as to the law and medicine remain embattled. But let us discuss the law! It may be logically and legally premature to rush to arguments as to the employer’s obligation to provide a safe working environment, as is it also fallacious to begin the discussion in statute law (law derived from Parliament). Even lawyers know that there is often a distance between logic and law.
The relationship between the employer and the employee does not begin in statutory obligations. That relationship between the employer and the employee begins in the law of contract, not derived from Parliament, but from the laws that have evolved within the courts over time. The common law is the birth-place of the relationship between the employer and the employee. The discussion seems to be taking place within the context of employment that preceded the pandemic and continues to the present. Let us therefore keep the discussion within that context.
Apart from the imposition of certain statutory rights and obligations, the voluntary nature of contract allows the parties to liberally agree as to its terms and conditions. Thereafter, neither the employer nor the employee can unilaterally vary the terms and conditions of that contract of employment.
At first glance, the latter statement would seem to suggest that the common law principles of contract prevent the employer from varying the terms of the contract to insist on the acceptance of the vaccine by the employee. How then, does the law resolve this crisis of industrial relations?
Apart from acknowledging the known express terms of a contract, the courts have been known to imply terms into the contract. By this methodology, the courts insert terms into the contract, based on the idea of reasonableness. By this approach towards legal resolution, is the employer entitled to dismiss an employee who refuses to take the vaccination? The law is not so intransigent, that it would fail to adapt new terms and conditions into a contract of employment, in order to allow an employer to bargain for a position in the interest of the survival of the enterprise.
Neither is the law so fickle, as to impose on an employee the duty to adjust to every circumstance that meets his employment. Logic and law must sometimes meet. The issue then becomes that of deciding what is reasonable in each circumstance.
On the one hand, the employer will argue that the refusal of the employee to accept the vaccination so undermines the business that it cannot function. On the other hand, the employee will argue, with no less persuasive force, that no employer may insist that an employee must accept medical procedures, even if the science is convinced that it is safe and efficacious. Which argument will survive in a tussle between commerce and human dignity?
If the employee invokes the argument as a constitutional human rights issue, that argument may hold validity only in relation to public servants, since constitutional rights do not exist as between parties in the private sphere.
It is worth noting, that even in the most perilous circumstances, Jehovah’s Witnesses are accorded their wish against blood transfusions. Similarly, a court is likely to regard serious religious or conscientious opposition to the vaccine with much sympathy.
While the court is ruminating on the issue of implied terms within the contract, it must also embrace the respective statutory rights and obligations of the employer and the employee, before making a final determination.
In summary, I opine that this issue begins in common law contract, while necessarily embracing statute law and human rights considerations (with limited application) along the way. Ultimately, it seems to me that the methodological approach will be that of deciding what is reasonable in the circumstances of the employment.
Therefore, as between a dental practice and an auto repair shop, I believe the result for the employee in each place of work would be different. The common law is made from argument and until Parliament makes clear, direct and specific intervention of this issue of mandatory vaccination, let us not kill the lawyers.
Ralph A. Thorne is a Queen’s Counsel, social commentator and sitting Member of Parliament for the Christ Church South constituency.
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