Employers who fire staff over vaccine certificates could face unfair dismissal claims

Establishments whose customer-facing staff must now be vaccinated could face claims of unfair dismissal if they fire said staff for refusing to present a valid vaccine certificate, according to an employment lawyer spoken to by BusinessNow.mt.

New rules which came into effect at the start of this week state that customer-facing employees of bars, restaurants, nightclubs, cinemas, gyms and other establishments must be fully vaccinated, booster shot included. Venues found in contravention of these rules will face a €500 fine for each individual breach.

But a lack of clarity in the rules means that such employers are largely in the dark over what they should do if an employee refuses to comply.

“The fundamental point to keep in mind is that, at the outset, the COVID-19 vaccination is not mandatory. This has therefore created uncertainty for such establishments which have been obliged to only permit entry to vaccinated patrons and staff. Many employers have been reaching out to ask about the status of employees who are unvaccinated in such situations,” said Roslyn Borg Knight, who specialises in employment law.

For example, Dr Borg Knight said, it was unclear whether the exemptions that allowed such groups as pregnant women and people with certain conditions not to get vaccinated also applied to staff.

She added that the first step for businesses that find themselves in such a situation should be to assess whether a non-client-facing role is available for them.

“However the issue which may arise is that the role is different to that they were contracted to do. Some employers are also considering putting staff on unpaid leave but this may not be sustainable or agreed to by the employee,” she said.

Asked if businesses could face claims of unfair dismissal if they were to fire employees who refuse to get vaccinated, Dr Borg Knight said:

“If an employer terminates an employee’s contract in such a case, an unfair dismissal claim may be filed by the employee. However, its success is questionable at this juncture owing to the uncertainty surrounding the matter. One cannot guarantee with any certainty as to which direction such a case would take, especially since we have received no concrete guidance from the appropriate authorities as to what employers should actually do when finding themselves in such situations.

Dr Borg Knight emphasised the importance of communication in avoiding such scenarios.

“It is important to assess the reason why an employee does not want to be vaccinated in order to avoid any claims of discrimination. Specific legal advice on such matters is strongly recommended.”

Last week, the Office of the Information and Data Protection Commissioner (IDPC) gave employers advice on how to ask about their workers’ vaccine status in such a way as to avoid falling foul of privacy and data protection laws.

The IDPC was the first Government agency to come forward with concrete advice on how to go about enforcing the new rules, after Health Minister Chris Fearne had previously dodged questions by journalists on what employers should do when confronted with unvaccinated customers or staff.

The Malta Employers Association (MEA) has long been an advocate for employers ability to check employee vaccine status.

In March of 2021, the organisation stated that workers who refuse to take a vaccine should not be entitled to quarantine leave, and that employers should find out their staff’s vaccine status to ensure a safe workspace.

More recently, The Malta Chamber called for employers to be given the right to ask workers for their vaccine certificates.