Posted: 06/05/2021

Warning to retailers over ‘legal minefield’ of COVID vaccine passports

Warning to retailers over ‘legal minefield’ of retail COVID vaccine passports

Using tests and vaccine passports to control who enters a shop is a “legal minefield”, a food retail legal specialist has warned.

Dominic Watkins, head of retail, food and hospitality at legal services firm DWF, said COVID-19 compliance was becoming “the new PPI” for certain law firms seeking to bring mass claims.

Prime minister Boris Johnson has long spoken of the key role mass testing and vaccination will play in the country’s exit strategy from lockdown.

Pilots began in April of a system the government said could eventually allow higher-risk settings to open up more safely by allowing people in based on their vaccination history, natural immunity from contracting the disease or a recent negative test result.

While the prime minister ruled out the use of status certification – dubbed COVID vaccine passports – when pubs fully opened in May, he did say lateral flow testing would be “a great advantage to us all as we go forward”.

Watkins said that while it was “theoretically possible” to use tests and vaccines to create COVID-free food shops, such a move could be difficult to implement in practice without inviting legal claims. “Discrimination claims have been a massive growth area through the pandemic,” he said. “Some of them are genuine, some less so.”

One retailer FFD spoke to said they have not considered using rapid testing for staff as they have been taking all necessary precautions in-store. Gemma Aykroyd, owner of The Cheeseboard of Harrogate, said: “I certainly wouldn’t be advising my customers to take tests as that is their business. I have three employees, who are all keen and excited to have their vaccines.”

Jen Grimstone-Jones of Cheese Etc, The Pangbourne Cheese Shop agreed. She said: “We don’t feel that it is appropriate for our staff to have to police customers and so we won’t be asking for any proof of vaccination or a Covid test.”

Refusing entry to a member of staff or the public who turned down a vaccine for medical reasons could be seen as discriminatory, Watkins explained, while expecting someone to take a test could be viewed as unreasonable.

“Look at posts about face coverings on social media,” he added. “You could lose a week on the comments sections. 

“There are dozens of claims management companies looking at COVID-19 as the new payment protection insurance, the new emissions scandal. Unions have created apps asking people to upload information about their work conditions to identify where businesses are not COVID-secure. 

“There are law firms specialising in discrimination and you can download template letters from their website.”

Ultimately employees and customers have to consent to having tests or vaccines, and can’t be treated differently if they don’t, Watkins said. Aside from this, companies conducting tests take on a responsibility to report them and have to be careful they don’t breach data protection law.

“It is wonderful that the prime minister says these things but the practicalities are often somewhat more challenging to implement without significant risks,” he added.  

However, one retailer was more hard-nosed, and said that staff refusal of the vaccine would be a “problem”.

“If a member of staff refused to get the jab when offered, without a reason which I consider valid and reasonable, I would consider that a problem and would have to consider what further action I might take,” said Steven Salamon, proprietor of Wally’s Delicatessen & Kaffeehaus, Cardiff.

“New staff will be asked for proof that they have had the jab, where it has been offered, at interview stage. Again I would consider it a problem if the answer is negative without a reason which I consider valid and reasonable. In that case someone is putting other staff and customers at unnecessary risk.”

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