Covid vaccinations and the workplace has become a hot topic. Headlines such as “No Jab, No Job” have been thrown around, but can this be done and is it really enforceable?
For many of us, a covid vaccination is potentially the highlight for 2021. But, a seemingly small population are resistant to the idea of the vaccine and that has now rolled over to making it a contentious issue in the workplace. Can you be fired for not having the jab?
Well, employers who start disciplining or firing staff who refuse a Covid vaccine risk costly unfair dismissal, constructive unfair dismissal and discrimination claims.
The issues of covid vaccinations and the workplace though are not clear cut and in our latest blog we try to throw some light on an emerging and contentious part of employment law.
Do You Have to Have a Covid Vaccination?
No. At the time of writing this blog, no law exists saying people must have the covid vaccination. This one statement has quite a significant impact on the whole issue as you are about to find out.
Can Your Employer Insist You have a Covid Vaccination?
Depends on the semantics! Broadly speaking an employer is stepping onto thin ice if they start ‘insisting’ all employees have a vaccination. But that is not to say they don’t have some room to manoeuvre on and around this point.
Employers have a legal obligation to ensure (as is reasonably practicable) the health, safety, and welfare of all their employees when at work. That obligation extends to customers and other personnel attending their premises. Therefore, the argument can be made that in trying to meet these obligations an employer insists on vaccines for all employees working on site.
However, things come back to our first point – no law exists making vaccination compulsory. So, let’s look at a working example; NHS frontline staff have not been “forced” to have a vaccine, but Professor Chris Whitty (Chief Medical Officer) has stated he feels there is a “professional responsibility” on health care professionals to be vaccinated. Professor Whitty might be seen to be making a ‘reasonable instruction’, but it is not legally enforceable.
Can an Employee Be Fired for Not Having the Vaccine?
An employer may ask or suggest an employee has the covid vaccination. And as detailed above that maybe seen as a “reasonable instruction”, but one which is not legally enforceable. Therefore, taking disciplinary action against an employee who decides against a vaccination is likely to backfire. Discrimination claims, tribunals, legal costings….they are things most HR Managers and business owners want to avoid. So don’t do it is my advice.
What about if the employer changes the contract of employment and inserts a policy on compulsory vaccination. Change the contract, create the obligation and policy on vaccinations and fire those who then fail to follow through? Would that really work? Well, let’s put it this way; someone who does not want the vaccine is unlikely to agree to a change in their employment contract on the issue. Unless you really hate yourself, I’d suggest avoiding that battle as well.
Could New Recruits Have Job Offers Withdrawn If They Do Not Have a Covid Vaccination?
Potentially, yes. This is where it becomes interesting.
Several organisations have publicly declared they will not hire new staff who refuse the vaccination for any other reason other than medical grounds. Worth mentioning here – there are certain medical conditions which mean it is not safe to be vaccinated.
This is where the “no jab, no job” headlines originate from. Initially, this stance was greeted with scepticism from employment lawyers. Surely this would lead to accusations of discrimination by employees?
Well, government advise suggests there is nothing legally stopping a business placing a “no jab, no job” clause in employment contracts for new hires. However, in the same breath it is suggested employers analyse each job role and evaluate health and safety risks before introducing the clause. Failing to do so opens the door to challenges that a contract is unfair or discriminatory.
Like all things ‘employment law’ – this probably needs to be tested with an actual case. To my knowledge no employment tribunals have tested the clause…yet.
Could Employees Who Refuse the Covid Vaccine Be Stopped from Returning to The Office?
In a sense this is the same as disciplining an employee. An employer who does this opens themselves up to cases of discriminatory particularly against younger employees or those with other protected characteristics (e.g., disability or belief). Why as an employer would you do that to yourself?
Returning to the office is not just about the vaccine. It is going to be about social distancing, PPE and washing hands regularly…arguably they are easier battles to win!
How Should an Employer Approach the Issue of Covid Vaccinations with Employees?
Broadly speaking with sensitivity, with encouragement and with suitable dialog. An employer may feel strongly about the benefits of the covid vaccination programme, but no one can be forced to have a vaccine.
Yes, be positive, and yes encourage employees to have the vaccination. But you may find in your organisation employees with beliefs, philosophies and medical conditions that mean they are opposed to the vaccine. In such cases encourage them to talk to medical professionals, trade union representatives and maybe religious leaders if it is appropriate.
Simply put, people are allowed to live their life as they wish. Without a legal precedent regarding covid vaccinations employers actually have very few options open to them. Therefore when it comes to covid vaccinations and the workplace you must act sensitively to the issue.
Employers may want the very best for their employees. They may have a heightened sense of health and safety in the workplace. They may wish to do everything to ensure the upmost protection for all involved. But that does not mean they can force employees to be vaccinated against their wishes.
Encouragement every step of the way – yes. But to go any further risks claims of discrimination and unfair dismissals.
Rightly so, the UK vaccination programme is held in high esteem. It really is one of the best in the world. However, when it comes to the overall management of covid in the workplace the vaccine really is just one variable that is outside of an employer’s control. Social distancing, PPE and hand washing are all just as important and within an employer’s control, so try not to lose sight of the whole picture.
About the Author
Simon Royston is the founder and Managing Director of The Recruitment Lab (A recruitment agency with offices in Aldershot and Brighton that offers employment services across Berkshire, Hampshire, Surrey, Sussex and beyond). Simon lives in Guildford and has worked in Recruitment for over a decade. He has a degree and a masters in psychology as well as a diploma in Human Resource Management. If you would like to know more about anything written in this blog or would simply like to express your own thoughts and opinions do not hesitate to contact Simon through The Recruitment Lab website.