No jab, no job?
Thursday, April 29, 2021
Just over a year ago, Covid-19 developed 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 that it’s a concept that is gathering steam. Charismatic (and controversial) 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. As he views it, “people would crawl across the snow naked” for the jab.
And there was the comment around the same time from the justice secretary, Robert Buckland, who said that 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 – “whilst complying with employment laws.”
And CIPD senior employment relations adviser, Rachel Suff, also understands the issues. As she says, “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”. She continues: “The widescale vaccine rollout really is uncharted territory for employers. Many are confused as to what their role in it is.”
From a legal standpoint, Ashton says 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 adds, 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 their will “and we don’t envisage any employer wanting to physically force someone to receive it”.
And Suff thinks the same. She notes that “the UK government hasn’t made the vaccine compulsory so neither can employers. Nor should they restrict people coming to work based on whether or not they have had the vaccine”.
To 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 says that it’s critical that employers thinking about requiring staff to be vaccinated in order to be employed, or remain in employment, should ensure that “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 which are most likely to be brought into play if the vaccine is refused.
This is why Suff advocates that employers, in line with official public health guidance, should consider “promoting the importance of staff getting the vaccine and highlight official advice to show its safety and effectiveness”. She adds that many employers already do this in the winter months for the flu jab.
But why do staff turn down the vaccine? Suff says: “There are many reasons why some people refuse. 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 says, could be protected by the Equality Act 2010. There are also those who may have strong religious or philosophical reasons.
And there are other individuals who may be hesitant to have the vaccine because they are not convinced about its efficacy or who have been influenced by some of the misinformation circulating on social media. Here she says that “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. They need to recognise the concerns that some people may have in the context of the very challenging year they have had”.
To forestall problems arising, in her view, employers should brief managers on the organisation’s vaccination policy, and any awareness campaigns around vaccinations. “Managers,” Suff says, “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 that it’s 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 Ashton says, “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 Ashton, the industry in which the employer operates will determine any justification. Here she considers that hospitals, care homes and other care organisations are likely to have a strong case for taking action for obvious reasons. “But,” she says, “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.”
In contrast to employees, while it’s easier to ‘impose’ terms on job applicants’, employers can’t 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, says Ashton, be considered carefully against the potential reasons a person may refuse. In her view, “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 warns that 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.
How to proceed
So, what to do? The answer ought to be obvious – employers should research their position and then communicate their intentions and aims.
Ashton appreciates the need for the virus to be controlled and for the vaccine programme to be successful. Even so, she says “employers should first seek their employees’ cooperation”. She adds that this should begin by considering “whether inoculation is strictly necessary for every role within the business and, where believed necessary, what alternative options there are before insisting on it”.
Part of this means having the evidence available to back up any proposed policy so that employees can be fully informed and will hopefully support the policy. If relevant, unions or work councils should be consulted and there ought to be a period where employees can feedback on the proposed policy so that changes can be made to cover off potential issues before it is rolled out.
One suggestion from Ashton is that employers consider whether there are alternative options such as seeking an agreement to alter duties for someone who is pregnant and unvaccinated; those employees may subsequently agree to receive the vaccine prior to returning to work after maternity leave.
On a practical level, Suff thinks that employers need to pragmatic. She says that “firms can make it easy for people to get the vaccine by being flexible about working hours or offering paid time-off”. This, she believes, will encourage take-up and reinforce the message that vaccination is important and supported by the employer.
And it shouldn’t be forgotten that in the short term while it’s true that we have the vaccine, the government has recently rolled out free rapid tests for all businesses for regular workplace testing.
All the same, Suff warns employers not to rush to get employees back to the workplace. She reckons that “it will be many months before most working age people will have received the vaccine. Where employees can continue to work from home, they should. This will help to protect staff and help bring the virus under control”. To this she also says that “if people must be in the workplace, employers need to continue to take all reasonable and required steps to protect their employees, regardless of how many have had the vaccine. We’re not out of the woods yet”.
The vaccine landscape is laced with landmines ready to detonate under unwitting employers who rush to impose a blanket ‘no jab, no job’ policy. Those that ignore the warning risk not only unfair dismissal and discrimination claims, but large tribunal awards “which,” says Ashton, “have the potential to be high value where an employee finds it difficult to obtain new employment.”
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.
According to Unite, the union, ‘no jab, no job’ contracts are a “disgraceful attempt to create a divisive narrative around workers and the vaccine”.
Unite and other trade unions have urged the government to rule out ‘no jab, no job’ contracts, where employers aim to force their workers to have Covid-19 vaccinations as a condition of employment.
Unite’s assistant general secretary, Howard Beckett, has highlighted that beyond the fact that such contracts are legally questionable, “they also further stoke a divisive, worker-blaming culture that glosses over the health and safety failings of bad employers and allows them to abdicate their responsibility in making workplaces Covid-secure.”
Unite believes that some employers may try to force existing employees to be vaccinated. But as Becket says, “neither [contracts and forced jabs] – whether with existing workers or new hires – has been legally tested. Any ‘no jab, no job’ contracts may leave employers open to discrimination lawsuits, or employees who cannot or choose not to be vaccinated could also have a case for constructive dismissal.”
Unions have asked the government to make it clear that employers should encourage, but not coerce, workers into taking Covid-19 vaccinations. TUC general secretary Frances O’Grady has said that “the government should make clear that making vaccination a condition of employment is the wrong approach.”