No COVID-19 jab, no job?

Written by: Adam Bernstein
Published on: 19 Jul 2021
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Image: Whispyhistory / CC BY-SA 4.0

Image: Whispyhistory / CC BY-SA 4.0

About 18 months ago – longer if the conspiracy theories are to be believed – COVID-19 moved from a localised outbreak in a Chinese province to a global pandemic.

Fortunately, the miracle of modern science has proven its worth as a number of vaccines came in double quick time; what ordinarily took years to develop came in a matter of months. And politics aside, vaccinations have been given in the UK, at least, at a rate never seen before.

But that begs a question: can an employer impose a “no jab, no job” diktat?

Readers of the press may be aware it’s a concept that is gathering steam. Charismatic founder of Pimlico Plumbers, Charlie Mullins, said mid-February that he fully intends to roll out contracts that force new starters to have had the vaccine.

Around the same time, justice secretary Robert Buckland was quoted as saying it may be legal for companies to insist on new staff being vaccinated as a condition of their employment.

A legal view

But the law isn’t so clear on the matter.

As Charlotte Ashton, senior solicitor at ESP Law, is keenly aware, employers are facing a difficult time in trying to balance their health and safety obligations against the opinions and concerns of staff – whether they are pro or anti-vaccine – “while complying with employment laws.”

Rachel Suff, senior employment relations advisor at the Chartered Institute of Personnel and Development, also understands the issues.

She said: “There’s been much speculation over whether employers can require their employees to have the COVID-19 vaccine or could restrict them from coming into a place of work if they haven’t had the jab.”

From a legal standpoint, Ms Ashton said that “while it is not clear-cut either way, we believe employers can, in some circumstances, issue a requirement for staff to be inoculated”. She added, however, “that such a decision should only be taken after careful consideration of all the issues”.

She makes one crucial observation, though – that no one can be forced to have the vaccine against his or her will “and we don’t envisage any employer wanting to physically force someone to receive it”.

Ms Suff thinks the same. She noted: “The UK Government hasn’t made the vaccine compulsory, so neither can employers. Nor should they be restricting people coming to work based on whether they have had the vaccine.”

To Ms Ashton, the question is really whether employers can either refuse to hire someone who is not immunised or dismiss someone who is currently employed and refuses to have the vaccine.

She said it is critical that employers thinking about requiring staff to be vaccinated to be employed, or remain in employment, should ensure “they follow a careful process and engage with their employees about the reasons for refusing”.

Her reasoning is based on the UK’s laws protecting employees against unfair dismissal and discrimination on grounds of protected characteristics such as disability, age and religious beliefs – the three most likely to be brought into play if the vaccine is refused.

This is why Ms Suff advocates that employers, in line with official guidance, should consider “promoting the importance of staff getting the vaccine, and highlight official advice to show its safety and effectiveness”.

But why do staff turn down the vaccine? Ms Suff said: “There are many reasons. Some may be advised not to have the vaccine due to a medical condition, or if they are pregnant, and others may be at risk of a severe allergic reaction or have trypanophobia – a fear of needles.”

These people, she said, could be protected by the Equality Act 2010.

Additionally, some people may have a strong religious or philosophical belief for refusing vaccination.

Meanwhile, other individuals may be hesitant to have the vaccine because they are nervous about its efficacy or have been influenced by misinformation circulating on social media.

On this point, Ms Suff said: “Organisations should encourage people to have the vaccination when they are eligible for it, and point to its benefits in helping to reduce infection and ease lockdown restrictions.”

To forestall problems arising, in her view, employers should brief managers on the organisation’s vaccination policy, and any awareness campaigns around vaccinations.

Ms Suff said: “Managers should be prepared to deal with possible questions and concerns they could face from employees about the vaccine, how to deal with them and when they should refer to HR if necessary.”

Dealing with current employees

It should be noted it is not a simple task for employers to unilaterally change contractual terms or make changes without employee consent.

The imposition of the requirement to take the vaccine is, as Ms Ashton said, “currently untested in the courts”.

She’s careful to advise that “it may be possible to issue a policy requiring employees to get vaccinated and, failing which, action could be taken on grounds that the employee has failed to follow a reasonable instruction of the employer, and/or on the grounds of capability, and/or on grounds of ‘some other substantial reason’”.

All of these are potentially “fair” reasons for dismissal.

But to Ms Ashton, the industry where the employer operates will determine any justification. Here, she considers hospitals, care homes and other care organisations are likely to have a strong case for taking action for obvious reasons.

However, she said: “Employers must consider all alternatives before issuing and enforcing such a policy, and prior to any dismissal, the individual circumstances of the employee’s refusal must be considered to ensure the employer does not fall foul of the law.”

Job applicants

In contrast to employees, while it’s easier to “impose” terms on job applicants, employers cannot trample on their rights.

Take discrimination, for example – applicants can bring claims against employers, so any requirement to receive the vaccine as a condition of employment must, Ms Ashton said, be considered carefully against the potential reasons a person may refuse.

She said: “What may be safest – during the recruitment process – is to explain a requirement for the employee to be immunised, but with a caveat that where an individual cannot or will not, this will be considered in light of their individual reasons for not doing so.”

Fundamentally, she warned it would be extremely risky to have a blanket policy refusing employment to those who have not been vaccinated because this is likely to constitute unlawful discrimination.

Summary

Vaccines in the workplace are a highly sensitive matter and cases may well be brought before the courts to test the issue.

With the potential for much negative publicity and large awards should an employer lose, care should be taken when mandating the vaccine in the workplace.

  • This article first appeared in Vet Times (Volume 51, Issue 26, Page 19).