What are the legal implications of ‘no jab, no job’?

In just a few short weeks, over 20 million people in the UK have received their first coronavirus jab and Prime Minister Boris Johnson has set out a roadmap plan out of lockdown.

What are the legal implications of ‘no jab

In just a few short weeks, over 20 million people in the UK have received their first coronavirus jab and Prime Minister Boris Johnson has set out a roadmap plan out of lockdown. After almost a year of tier systems, face masks and hand sanitizer, anticipation of a ‘return to normal’ is mounting, and for many, June 21st feels like a light at the end of the tunnel.

However, whilst employers can look forward to the prospect of staff returning to the workplace, they are presented with a myriad of challenges. There is a lot of uncertainty about how to ensure the work environment is safe for everyone, and best practices for regulating how people come back to a physical workspace safely and legally. 

Return to work once vaccinated? 

Indeed, whilst the government has confirmed that receiving the vaccination will not be a legal requirement, some organisations may want to encourage their employees to accept the vaccine in the belief that this is the best strategy for returning to work.

Whilst refusing to take the vaccine could be deemed as a health and safety issue, at the moment there hasn’t been an indication about whether it will be brought into legislation. Doing so may be problematic, not least because there are millions of healthcare professionals, whether it be NHS or nursing home professionals in the workforce – some of whom have declined a vaccine.

Employment contracts may change

However, in some professions vaccinations may become a mandatory part of the job and a requirement in future employment contracts. In care homes, for example, it is possible that it will become an industry-wide staff requirement further down the line.

According to the justice secretary Robert Buckland, it is legal for businesses to insist that new employees are vaccinated against COVID-19 as a condition of their employment – in what is referred to as a ‘no jab, no job’ contract. In a recent media coverage, justice secretary Robert Buckland suggested it is “up to businesses what they do” – and that only enlisting new staff once they had been inoculated was possible if it was written into their contracts. However, Buckland said it was unlikely bosses could make existing employees have vaccines under their current contracts.

There are already examples of businesses adapting their approach to recruitment and employment contracts to address COVID-19. For instance, Barchester Healthcare, which runs more than 200 care homes in the UK, has already announced all new recruits must be vaccinated unless they have medical reasons not to take the jab. London-based Pimlico Plumbers said when vaccinations are readily available, all new workers will have to have one. 

Discrimination Risks

But where does that leave everyone else, and to what extent can employers demand that staff get vaccinated? Lawyer Philip Landau, whose firm Landau Law acts for employees, said he has seen some employers expecting staff to agree to get the jab, or be disciplined. Without definitive clarity, it’s important that employers consider the issues carefully to balance the rights of everyone involved.

Dismissing or subjecting an employee to detriment for refusing to be vaccinated could lead to claims of discrimination. Ultimately, under the Human Right Convention, you cannot force another person to do anything – including taking a vaccine. In the UK, if you have over two years of employment then you cannot be terminated, as this counts as unfair dismissal, so there are a number of risks for employers if they take this stance.

Furthermore, employees may be unwilling to receive the vaccine due to an underlying health condition. If these medical conditions meet the definition of a disability under the Equality Act 2010, taking any kind of action against them could result in claims for disability discrimination. Refusing to be vaccinated on religious grounds could also bring claims of discrimination. These claims can be made against an employer or even a prospective employer if a role is appointed elsewhere due to the prospective employee not having a vaccine.

Incentivise employees

If employers wish their employees to be vaccinated, and they are refusing due to personal choice, employers can strongly encourage employees by talking to them, providing documentation and guidance, such as information from NICE guidelines, government, and vaccine manufacturers. It’s important for employers to give staff the time to look into these materials and have a dialogue with them about it in which all concerns can be addressed.

Furthermore, employers could incentivise staff with options such as paid time off to receive their vaccine, or provide them with a contact line or workshop sessions to engage with professionals to discuss their concerns.

Future implications

As the year progresses, certain countries are likely to offer travel ‘passports’ for people that have had the vaccine. If travel is a requirement of the job, and an individual chooses not to have the vaccine, this could have a serious impact on their ability to carry out a fundamental part of the role. 

The debate around the legal and moral impact of the no jab, no job policy will continue to grow as organisations look to move into a post-pandemic recovery. On the one hand, COVID-19 has made a huge financial impact on businesses around the world, and many want to protect themselves, their staff and customers from the risk of future infection. Despite the variations in vaccine uptake across different countries, some employers are clearly viewing mandatory inoculation as their only route to certainty.

However, the legal position of the policy remains somewhat uncertain, particularly relating to existing employees and their contracts. Full clarity may only become available once it has been through the courts and rulings have been given, and as the Justice Secretary has said, I think frankly the issue would have to be tested.

Wherever we end up, one thing employers must recognise is that the impact of COVID-19 on employment, recruitment policies and contracts of employment is likely to remain relevant for the foreseeable future. As a result, it’s vital that leaders and HR teams consider the implications of vaccination uptake on their organisations, take professional advice and formulate their policies based on the best current guidance.

Kathryn Barnes
Kathryn Barnes

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