No jab, no job?

On behalf of Attwaters Jameson Hill posted in Employment Law on Thursday, February 25th, 2021

In an ITV interview, Justice Secretary Robert Buckland suggested that companies may theoretically be able to turn down job candidates who refuse to get a COVID-19 vaccine, by writing it into their contract as a condition of employment.

Firms are taking a stand

The comments come after some firms spoke out to say they will not hire new employees who refuse to be inoculated, including care home group Barchester Healthcare. The group stated that it will not be hiring new employees who refuse to have the vaccine for non-medical reasons – and it is by no means the only business to do so. After being forced to close for months on end, it is unsurprising that many businesses are desperate to make sure that the virus wreaks no further havoc when they are eventually allowed to reopen.

While the government is not planning to ban this practice, it has warned that “Companies must ensure their business practices are legal and don’t discriminate against customers or employees.”

And existing employees?

Furthermore, a spokesman for the Prime Minister said that it was unlikely that employers will be able to force existing staff to have the vaccine in order to keep their job, commenting: “Taking a vaccine is not mandatory and it would be discriminatory to force somebody to take one.” Indeed, the Public Health (Control of Disease) Act 1984 specifically provides that no member of the public can be forced to undergo medical treatment – including vaccines.

Forcing existing staff members to have the COVID-19 vaccine could also give rise to legal claims under the Equality Act 2010. Employees could legitimately cite protected characteristics under the Act to bring a legal claim against their employer, including religious or philosophical beliefs, pregnancy or a health condition equating to a disability. Meanwhile, changing the terms of a staff member’s existing contract to include mandatory vaccination must be expressly agreed by the staff member first; if not, they would be entitled to resign and sue for unfair dismissal.

The Confederation of British Industry (CBI) has argued that there is no case for forcing employees to be vaccinated before allowing them back into the workplace, saying that businesses were “committed to doing everything they could to inform and engage their employees on the benefits of the vaccine.”

Encouraging – not forcing

Under the Health and Safety at Work Act 1974, it is employers’ responsibility to ensure they take reasonable steps to reduce workplace risk. As such, the best thing that employers can do to maximise uptake of the vaccine and make their workplace as safe as possible is to publicise the benefits of vaccination among their staff, and encourage them to take the vaccine as the best way of improving their and their colleagues’ safety at work. Ways to achieve this include:

  • Running an awareness campaign among staff members using genuine information from the NHS website;
  • Ensuring that managers and senior staff are aware of the organisation’s approach to the vaccine;
  • As well as promoting official NHS information, working to counteract misinformation and conspiracy theories that may be circulated among your staff;
  • Having individual conversations with employees who are particularly concerned by the vaccine to try and assuage their worries.

Consult the experts

If you are an employer concerned about how to promote the vaccination programme among your employees, or are considering a ‘no jab, no job’ recruitment policy, then it’s important to take professional legal advice before acting. As we have explored in this blog, enforcing the vaccine among your employees is a risky step for businesses, so please contact our Employment Law specialist, Ahmet Ozcan, at ahmet.ozcan@attwaters.co.uk for expert advice.

Sources:

https://www.ft.com/content/965dfaf0-f070-4dae-93a6-28bedbdb75da

https://www.cityam.com/british-companies-draw-up-no-jab-no-job-contracts-ahead-of-lockdown-easing/

https://www.cipd.co.uk/knowledge/fundamentals/emp-law/health-safety/preparing-for-covid-19-vaccination#gref

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